Kuwait Court of Cassation principle number 272

Summary: - Claim against the Ministry of Social Affairs and Labour for the allowance prescribed for persons with disabilities pursuant to Law 49 of 1996 concerning the Care of Disabled Persons. Enactment of Law 8 of 2010 concerning the Rights of Persons with Disabilities before the action was brought, and its repeal of the first law. Its consequence. The necessity of joining the Director of the Public Authority for Disability Affairs, the proper party to the action under the latter law. The challenged judgment's departure from this and its rejection of the plea that the action was inadmissible for having been brought against an improper party. An error requiring its cassation. Rule: It is established in the jurisprudence of this Court that a defendant has capacity as a proper party whenever the right sought in the action exists against him, as the person concerned with it and responsible for it if the claimant's entitlement to it is established. Although ascertaining the parties' capacity in an action is a question of fact that the trial court determines independently without review, this is conditional upon its inference being reasonable and having an established basis in the papers. That being so, and as the papers establish that the respondent, in his capacity, brought the action seeking his sister's entitlements previously granted to her as a person with disabilities, as established by her disability certificate, which establishes that she suffers from a dual intellectual and mobility disability, pursuant to Law No. 49 of 1996 concerning the Care of Disabled Persons, which was repealed by the aforementioned Law No. 8 of 2010, and that he lodged the statement of claim with the Registry on 17/6/2010, after the enactment of the latter law, which took effect from 28/5/2010, he ought to have joined in his action the “Director-General of the Public Authority for Disability Affairs,” the proper party in respect of the allowance claimed. Since the challenged judgment departed from this view and rejected the appellant's plea that the action was inadmissible for having been brought against a person without entitlement, on the ground that the allowance claimed had previously been granted to the respondent in his capacity and that the amount claimed related to a period preceding the operation of Law No. 8 of 2010, and upheld the first-instance judgment ordering the appellant to pay that amount, it erred in applying the law, rendering it defective and requiring its cassation on this ground without any need to examine the remaining grounds of appeal.