1. Before the court is a Notice of Motion application dated 4 April 2025, by which the applicant seeks to be appointed as the guardian ad litem of Francis Chilengeli, on the basis that the latter person is missing, having disappeared without a trace in May 2024.
2. The applicant, Mr Moses Munga Chilengeli, deposed that Francis Chilengeli, whom I shall hereafter refer to as the subject, was his father. The subject was awarded costs of Kes.134,777/- in Mombasa HCCC No 207 of 2007, which he was unable to recover. He averred that the disappearance of his father was reported at Chasimba Police Station under OB No. 9/25/05/2024. The applicant is a student at Embu University. He has four siblings who are also school-going.
3. The applicant, it would seem, seeks to be appointed as a guardian ad litem so that he can recover the costs and utilize the same in paying school fees and other related expenses.
4. I have perused the said application. The application is brought under Order 32 of the Civil Procedure Rules, which provides for procedures applicable to suits for and on behalf of minors and people of unsound mind. The subject is neither of these. Rather, he has not been traced since May 2024. In my view, the above provision of the Civil Procedure Rules is inapplicable to this case.
5. I have not seen evidence of attempts to trace the subject beyond the report made to the Chasimba Police Station. I would have expected more diligence beyond that which has been shown. Thus, even if, which isn’t the case, the proper procedure had been used, I would still not have granted the orders sought.
6. In any case, it is my view that the application is misguided. To step into the shoes of his father, the applicant needs to apply, upon the effluxion of 7 years, for his father to be presumed dead.
7. The upshot of the foregoing is that the application has no merit and is hereby dismissed. I make no orders as to costs. I direct that the court file be closed forthwith.
8. It is so ordered.
Dated and signed at Mombasa this 1st day of July 2025. Delivered virtually through Microsoft TEAMS.
2. The applicant, Mr Moses Munga Chilengeli, deposed that Francis Chilengeli, whom I shall hereafter refer to as the subject, was his father. The subject was awarded costs of Kes.134,777/- in Mombasa HCCC No 207 of 2007, which he was unable to recover. He averred that the disappearance of his father was reported at Chasimba Police Station under OB No. 9/25/05/2024. The applicant is a student at Embu University. He has four siblings who are also school-going.
3. The applicant, it would seem, seeks to be appointed as a guardian ad litem so that he can recover the costs and utilize the same in paying school fees and other related expenses.
4. I have perused the said application. The application is brought under Order 32 of the Civil Procedure Rules, which provides for procedures applicable to suits for and on behalf of minors and people of unsound mind. The subject is neither of these. Rather, he has not been traced since May 2024. In my view, the above provision of the Civil Procedure Rules is inapplicable to this case.
5. I have not seen evidence of attempts to trace the subject beyond the report made to the Chasimba Police Station. I would have expected more diligence beyond that which has been shown. Thus, even if, which isn’t the case, the proper procedure had been used, I would still not have granted the orders sought.
6. In any case, it is my view that the application is misguided. To step into the shoes of his father, the applicant needs to apply, upon the effluxion of 7 years, for his father to be presumed dead.
7. The upshot of the foregoing is that the application has no merit and is hereby dismissed. I make no orders as to costs. I direct that the court file be closed forthwith.
8. It is so ordered.
Dated and signed at Mombasa this 1st day of July 2025. Delivered virtually through Microsoft TEAMS.