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ELRCOtherNot stated in the judgment· [2019] KEELRC 1260 (KLR)

NAA v Seven Four Eight Air Services (K) Limited [2019] KEELRC 1260 (KLR)

Employment and Labour Relations Court
5 July 2019
BOByram Ongaya
852 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court will not appoint a next friend to sue for someone until it personally holds an inquiry into that person's mental capacity.

What this practically means

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Executive summary

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The claimant, a captain who sustained severe head and brain injuries in an aircraft accident on 17.02.2014, applied through Walker Kontos Advocates on 08.11.2018 seeking appointment of his sister KRW as next friend or guardian to prosecute his suit, invoking Articles 48 and 159 of the Constitution and Order 32 rules 1 and 15 of the Civil Procedure Rules. Medical reports showed he had been in ICU on a ventilator and suffered significant pre-traumatic amnesia, with an opinion that he could not coherently comment on the events leading to the crash. The respondent opposed through grounds of opposition, arguing the claimant had sued in person, signed a verifying affidavit and filed a witness statement, that no adjudication of unsoundness or inquiry had occurred, and that the latest medical report showed he could recollect current events. It relied on MMM v AMK (Mativo J) for the requirement of questioning the person and medical evidence in an inquiry under Order 32 rule 15. Justice Byram Ongaya noted the claimant could follow and recollect current events per the 21.03.2019 report, and that the court had not conducted the required inquiry. Directing the claimant's attendance for an inquiry into his capacity, and citing section 3 of the Employment and Labour Relations Court Act on expeditious disposal, the court ordered the parties to fix a convenient date for the inquiry and appropriate orders, with costs of the application in the cause. The application was accordingly determined without appointing the proposed next friend at that stage.

Key legal issues

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01

Whether a guardian ad litem may be appointed without an inquiry under Order 32 rule 15

Holding

No - the court must first hold an inquiry into the claimant's mental infirmity before appointing a next friend or guardian.

Reasoning

The court noted the medical reports showed some pre-traumatic amnesia regarding the accident, but the most recent report indicated the claimant could follow and recollect current events. Since no inquiry had been carried out as required by Order 32 rule 15, and in the interest of efficient and expeditious determination under section 3 of the ELRC Act, the court directed that the claimant attend court for the necessary inquiry before any appointment could be made.

p. 2

Legal principles established

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  • Before a person may sue or be sued through a next friend or guardian under Order 32 rule 15, the court must conduct an inquiry into whether the person is incapable, by reason of unsoundness of mind or mental infirmity, of protecting their interests.

Court orders

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  1. 1.The parties to fix a convenient date for attendance of the claimant for the necessary inquiry to determine if by reason of mental infirmity he is incapable of protecting his interests in the present suit and for appropriate orders in view of the application
  2. 2.Costs of the application in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 48 and 159
  • Civil Procedure RulesOrder 32 rules 1 and 15; Order 50 rule 1
  • Employment and Labour Relations Court Actsection 3

Cases cited (1)

  • MMM –Versus- AMK
    [2016] eKLR
Jurisdiction invoked
Articles 48 and 159 of the Constitution of Kenya 2010; Order 32 rule 15, Order 32 Rule 1 and Order 50 rule 1 of the Civil Procedure Rules; section 3 of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "NAA v Seven Four Eight Air Services (K) Limited [2019] KEELRC 1260 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1260/eng@2019-07-05

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