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Intriguing Facts Of Kenyan Law That Will Interest You-Part 2

Natural Persons:- Limitations exist when it regards suing children,incompetent persons,aliens who are foreign persons.In Probate matters,upon death,such a person ceases to exist as a party and actions on behalf of their estate are taken in a representative proceeding by the executors of administrators of the estate.

In a situation whereby several co plaintiffs die during the course of the trial,substitution is only allowed if the cause of action cannot be carried forward by the surviving plaintiff.

Order 24 Rule 3 of the Civil Procedure Rules provides that a suit abates after one year of death.Unless an application is made for substitution within that time with good reason given by the applicant.

A natural person may be a party in his given name,assumed or fictitious name.Absolute accuracy in spelling names is not required in legal documents.

In matters whereby the defendant is doing business under a fictitious name,you can address the defendant by that fictitious name when making a plaint.When the true name of the defendant(s) is discovered,the plaint can generally be amended.

Under law,an agent can't institute a suit on behalf of a principal without the principal's authority.Care should be taken not to swear the affidavit on behalf of the principal.

When it comes to minors/infants,there is a disability in law which prevents them from assuming rights and liabilities of an adult.

A minor is a person who is under the age of 18 years under law.

Minors can only sue by their next friend and defend by their guardian ad litem.The friend must sign a written authority that is to be filed with the plaint.

For example:

MK Suing through mother and next friend KM................................................Plaintiff


Kenya Ports Authority Ltd................................................................................Defendant

Procedure for the appointment of a next friend or guardian ad litem is a written authority to act and must be filed together with a pleading.

When an advocate fails to file an authority when filing for a minor results in the suit being struck and the costs are paid personally by the counsel/advocate in this matter.

A decree which is obtained without the appointment of a next friend is a nullity.In Order 32 Rule 3 of the Civil Procedure Rules,in a situation whereby no defence has been filed on or before the day fixed in the summons for a defendant who is a minor or a person of unsound mind,the plaintiff shall before further proceeding with the suit apply to the court for an order that some proper person be assigned guardian ad litem of the defendant.

The objective of the appointment of a next friend is for the protection of the infant's rights and the guaranteeing of costs if the plaintiff's claim fails and to ensure the conduct of the proceeding.

Content created and supplied by: Simplylenah_ (via Opera News )

Civil Procedure Rules Kenyan


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