the civil procedure act - Kenya Law Reports

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156[Subsidiary]CAP. 21 Civil Procedure [Rev. 2010(2) An order for the appointment of guardian ad litem may be obtainedupon application in the name and on behalf of the minor or by the plaintiff. fact that the proposed guardian has no interest in the matters in controversy in(4) No order shall be made on any application under this rule exceptupon notice to the minor and to any guardian of the minor appointed or declaredby an authority competent in that behalf, or, where there is no such guardian,upon notice to the father or mother of the minor, or, where there is no fatheror mother of the minor, to the person in whose care the minor is, and, afterhearing any objections which may be urged on behalf of any person servedwith notice under this subrule.[Order 32, rule 4.]Who may act asnext friend or beappointed guardianfor the suit.4. (1) Any person who is of sound mind and has attained majority mayact as next friend of a minor or as his guardian ad litem:Provided that the interest of such person is not adverse to that of theminor, and that he is not, in the case of a next friend, a defendant, or, in thecase of a guardian ad litem, a plaintiff.(2) Where a minor has a guardian appointed or declared by competentauthority, no person other than such guardian shall act as the next friend of theminor or be appointed his guardian ad litem, unless the court considers, forreasons to be recorded, that it is for the minor’s welfare that another person bepermitted to act, or be appointed, as the case may be.(3) No person shall without his consent be appointed a guardian ad litem.adlitemduties as such guardian shall be borne either by the parties or by any one ormore of the parties to the suit, or out of any fund in court in which the minor isinterested, and may give directions for the payment or allowance of such costsas justice and the circumstances of the case may require.[Order 32, rule 5.]Representation ofminor by next friendor guardian for thesuit.[Order 32, rule 6.]Receipt of properties5. (1) Every application to the court on behalf of a minor, other thanan application under rule 10 (2), shall be made by his next friend or by hisguardian ad litem.(2) Every order made in a suit or on any application before the court inor by which a minor is in any way concerned or affected, without such minorbeing represented by a next friend or guardian ad litem, as the case may be,may be discharged, and, where the advocate of the party at whose instance suchorder was obtained, knew, or might reasonably have known, the fact of suchminority, with costs to be paid by such advocate.6. (1) A next friend or guardian ad litem shall not, without the leave ofthe court, receive any money or other movable property on behalf of a minor,
Rev. 2010] Civil Procedure CAP. 21 157either—(a) by way of compromise before decree or order; or[Subsidiary]or money on behalfof minor.(b) under a decree or order in favour of the minor.(2) Where the next friend or guardian ad litem has not been appointedor declared by competent authority to be guardian of the property of the minor,or, having been so appointed or declared, is under any disability known to thecourt to receive the money or other movable property, the court shall, if it grantshim leave to receive the property, require such security and give such directionsits proper application.7. (1) No next friend or guardian ad litem shall, without the leave ofthe court expressly recorded in the proceedings, enter into any agreement orcompromise on behalf of a minor with reference to the suit in which he acts asnext friend or guardian.[Order 32, rule 7.]Agreement orcompromise of suiton behalf of minor.(2) Any such agreement or compromise entered into without the leave ofthe court so recorded shall be voidable against all parties other than the minor.8. (1) Unless otherwise ordered by the court, a next friend shall not retirethe costs already incurred.(2) The application for the appointment of a new next friend shall bethat he has no interest adverse to that of the minor.9. (1) Where the interest of the next friend of a minor is adverse to thatof the minor, or where he is so connected with a defendant whose interest isadverse to that of the minor as to make it unlikely that the minor’s interest willbe properly protected by him, or where he does not do his duty, or during thecause, application may be made on behalf of the minor or by a defendant formay order the next friend to be removed accordingly, and make such other order(2) Where the next friend is not a guardian appointed or declared by anauthority competent in this behalf, and an application is made by a guardian soappointed or declared who desires to be himself appointed in the place of thenext friend, the court shall remove the next friend unless it considers, for reasonsto be recorded by it, that the guardian ought not to be appointed the next friendof the minor, and shall thereupon appoint the applicant to be next friend in his[Order 32, rule 8.]Retirement of nextfriend.[Order 31, rule 9.]Removal of nextfriend.10. (1) On the retirement, removal or death of the next friend of a minor,further proceedings shall be stayed until the appointment of a next friend inhis place.[Order 32, rule 10.]Stay of proceedings.
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