REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU ELCL MISC. CASE NO. E031 OF 2026 PHYLIS NTINYARI ...............................................1ST APPLICANT IAN MARK MUTUGI .............................................2NDAPPLICANT RULING 1. Land parcel number Buuri/Ruiri Rwarera/11097 was on 22/6/2023 registered in the joint names of: (i) Phylis Ntinyari; (ii) Ian Mark Mutugi; and (iii) Promise Mutethia. Ian and Promise are said to have been minors at the time they were registered as co-proprietors. It is alleged that Ian has now attained the age of majority but Promise is still a minor. It is also alleged that Phylis is the biological mother of both Ian and Promise. 2. Vide an originating summons dated 13/9/2026, Phylis and Ian moved this court under a certificate of urgency, seeking an order vesting the suit land in the name of Mutuaruchiu Jeremy Munene, a purchaser with whom they entered into a ELCL MISC NO. E031 OF 2026 – Ruling Page 1
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sale agreement dated 19/6/2026 in relation to the suit land. On 21/9/2026, this court directed the two applicants to appear before it to address it on the question of the minor’s guardian ad litem in relation to the suit land and to these proceedings. Counsel for the applicants appeared and addressed the court on 28/9/2026. The court is now required to address itself on the issue of the minor’s guardian ad litem for the purpose of these proceedings and for the purpose of the intended disposal of the co-owned land. 3. Counsel for the applicants argued that because Phylis is the biological mother of the minor, she does not require to be formally appointed or constituted as the minor’s guardian ad litem. The court has considered the above argument. 4. To use the words of Hans Kelsen in his Pure Theory of Law thesis, the grund norm in litigations relating to children is Article 53 (2) of the Constitution which provides as follows:“A child’s importance best in interests every are matter of paramount concerning the child.” 5. The Children Act 2022 is, by and large, anchored on Article 53 (2) and similarly places emphasis on the best interests of the child. Section 8 of the Act provides thus:“8. Best interests of the child (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, ELCL MISC NO. E031 OF 2026 – Ruling courts of law, Page 2
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administrative authorities or legislative bodies— (a) the best interests of the child shall be the primary consideration; (b) the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. (2) All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to— (a) safeguard and promote the rights and welfare of the child; (b) conserve and promote the welfare of the child; and (c) secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest. (3) In any matters affecting a child, the child shall be accorded an opportunity to express ELCL MISC NO. E031 OF 2026 – Ruling Page 3
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their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity. (4) The Cabinet Secretary shall issue guidelines to give effect to this section.” 6. Section 2 of the Children Act 2022 defines a guardian ad litem as follows: “an adult appointed by the court to represent the best interests of a child.” 7. In the originating summons before court, the two applicants and the minor are said to be co-owners of the suit land. The two applicants have already sold the suit land. All they want at this point is a vesting order. They insist that because one of them is the biological mother of the minor, there is no need for appointment or constitution of a guardian ad litem within the meaning of the Children Act 2022. 8. The view the court takes is that, notwithstanding the fact that one of the applicants is alleged to be the biological mother to the minor and a co-registered proprietor of the suit land, there is need for either her or any other person to move the relevant court for the purpose of being appointed/constituted a guardian ad litem for the purpose of assuming the role of a legal trustee and for the purpose of transacting on behalf of the minor. Once she is constituted a guardian ad litem, she becomes a trustee bound by the relevant trust laws in force in relation to the property that ELCL MISC NO. E031 OF 2026 – Ruling Page 4
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the minor co-owns with the applicants. Indeed, the party who should be taking out the present originating summons is the duly appointed guardian ad litem; not merely the two coregistered owners. 9. For the above reasons, the originating summons dated 13/9/2026 is pre-mature and is struck out with no order as to costs. It is directed that relevant proceedings should be initiated for appointment of a guardian ad litem of the minor. The duly appointed/constituted guardian ad litem shall be the one to move the court for a vesting order. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 8TH DAY OF OCTOBER, 2026. B M EBOSO [MR] ELC JUDGE In the Presence of: Ms Nakandi for the Applicants E. Tupet – Court Assistant ELCL MISC NO. E031 OF 2026 – Ruling Page 5
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