In re Hezekiah Wanjohi Wango (Deceased) [2016] KEHC 13 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

SUCCESSION CAUSE NO. 362 OF 2010

In the matter of the Estate of  HEZEKIAH WANJOHI WANGO (Deceased)

N M........................................................................................................................APPLICANT

VERSUS

MARGARIT WANJIRU WANJOHI...................................PETITIONER/RESPONDENT

FREDRICK NYAGA M'THURA....APPLICANT/PROPOSEDGUARDIAN AD LITEM

R U L I N G

1. This is the application dated 19/10/2015 seeking that the applicant be appointed guardian ad litem of N M the applicant in the summons for revocation dated 26/11/2013. The application is supported by the affidavit of Fredrick Nyaga M'Thura stating that the said Muchiri has become physically and mentally infirm due to his advanced age and is no longer able to protect his interest in the suit. The applicant is also sickly. The deponent states that he is the person fit to be appointed as he is his nephew and has his best interest and is conversation with matters pertaining the suit.

2.  In the replying affidavit the respondent states that the medical report indicates that the applicant is capable of handling the proceedings even if he is slow in thinking. There are matters in this case to which only the applicant has personal knowledge thereof and therefore and it is best that he testifies. It is therefore right that he should be allowed to testify so that the court can gauge his mental status.

3. The application was argued by way of written submissions.

4. The applicant submitted that he relies on the grounds in the affidavit and added that the application that the guardian ad litem is supposed to proceed with is the one for revocation of grant which was filed by the applicant on 27/11/2013.  The petitioner in her submissions restated the contents of the replying affidavit.

5.  In the further submissions by the guardian ad litem, it was stated that the applicant is not in a position to manage his personal and legal affairs.

6.  The law applicable herein is Order 32 of the Civil Procedure Rules under which the application is based among other provisions in the Law of Succession Act.

7.  Rule 63 of the Probate and Administration Rules provides that;

(1) Save as is in the Act or in these Rules otherwise  provided, and subject to any order of the court or a registrar in any particular case for reasons to be  recorded, the following provisions of the Civil  Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together  with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under  these Rules.

(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in  relation to intestate and testamentary succession  and the administration of estates of deceased  persons shall be those existing and in force immediately prior to the coming into operation of  these Rules.

8.   The application is brought under Order 32 Rules 3 and 15 of the Civil Procedure Rules which is not one of the provisions exported by section 63 of the Probate and Rules.

9.   However the court under section 49 of the probate and administration rules provides that;

A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.

10.  Section 73 of the Probate and Administration Rules provides that;

Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

11.  The medical report dated 8/10/2015 is an expert opinion confirming that the applicant suffers from senile dementia and is incapable of managing his personal, financial or legal affairs.

12.   The opinion of an expert can only be rebutted by a report of another expert.  The respondent failed to present a report to the contrary.  He has failed to satisfy the court that the applicant should not be granted the orders  sought.

13.  I find the application merited and allow it as prayed with no order as to costs.

DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF NOVEMBER, 2016.

F. MUCHEMI

J U D G E

In the presence of:-

Mr. Kathungu for Applicants

Mr. Okwaro for Respondents