In Re Estate of Wanyonyi Mwasame Namunyu (Deceased) [2009] KEHC 77 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT KITALE

Succession Cause 86 of 2004

IN THE MATTER OF THE ESTATE OFWANYONYI MWASAME NAMUNYU....DECEASED

VERSUS

TERESIA KHISA WANYONYI.......................................................................................APPLICANT

R U L I N G

By a Notice of Motion (undated) but filed on 16th October 2009, pursuant to the provisions of order XXXI Rule 15 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act, the applicant seeks orders:

1. That this application be certified urgent and heard ex-pate in the first instance.

2. That Florence Auma, be made a next friend to Teresia Khisa Wanyonyi, who is incapable of protecting her interest in this case.

3. That any other order that this court may deem just and expedient to grant.

4. That the costs of this application be provided for.

The application is based on the grounds.

(a)The applicant has suffered mental infirmity and is incapable of presenting her case.

(b)In the interest of justice application should be allowed.

(c)No prejudice shall be occasioned if the order is granted.

(d)To enable the court finalise this case the order should be granted.

The application is predicated upon the annexed affidavit of Florence Auma, sworn on the 16th day of October 2009.

On behalf of the applicant, it was argued that Teresia Khisa Wanyonyi, is her biological mother aged 65 years.

That the mental status of the applicant has since deteriorated – psychiatric problem. In support of that medical condition is a medical report exhibited as “FA1”. By reason of the foregoing she is not in a position to conduct her personal affairs hence the need to appoint a next friend to conduct the law suit filed herein.

The respondent neither filed grounds of opposition nor replying affidavit.

Order XXXI Rule 15 provides thus:

“ The provisions contained in rules 1 to 14, so far

as they are applicable, shall extend to persons

adjudged to be of sound mind, and to persons

who though not so adjudged are found by the

court on enquiry, by reason of unsoundness

of mind or mental infirmity, to be incapable

of protecting their interests when suing or

being sued”.

It is axiomatic that an order for appointment of a guardian ad litem may be obtained upon application in the name and on behalf of a person of unsound mind in like manner as a minor.

Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of a person of unsound mind or minor; and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian ad litem a plaintiff.

Before the name of any person shall be used in any action as next friend of a person of unsound mind or minor such a person shall sign a written authority for that purpose and the authority shall be filed.

I have scanned through the application and find as a fact that no written authority for that purpose has been signed and filed with the application.

For the foregoing reasons the application fails and is struck out. The applicant is granted leave to file a fresh proper application.

Dated and delivered at Kitale this 12th day of November, 2009.

NRO OMBIJA

JUDGE

Florence Auma in person.

Mr. Njoroge for Respondent.