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ELCAllowedNot stated in the judgment· [2025] KEELC 5259 (KLR)

Kenneth & another (Both Suing as Legal Representatives and Beneficiaries of the Estate of the Late Joel Kiprotich Kiget) v Kositany & 2 others; Kositany (Applicant) (Environment and Land Case 24 of 2019) [2025] KEELC 5259 (KLR)

Environment and Land Court
10 July 2025
LOL. A. Omollo
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a daughter to represent her dementia-affected father in a land case after a two-step check of his capacity.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho on a Notice of Motion dated 10th December 2024 by Chepkirui Kositany, daughter of the 1st Defendant John Kositany, seeking appointment as guardian ad litem of her father under Order 32 Rules 3 & 15 and Order 51 Rule 1 of the Civil Procedure Rules. The underlying suit, filed in March 2019 by the Plaintiffs/Respondents, seeks declarations that the cancellation of the deceased Daniel Kositany Kilel's name from parcel Kericho/Kapsimbiri/814 and the registrations of parcels 1062 and 1063 in the 1st Defendant's name were fraudulent, and an order of mandamus compelling the 2nd Defendant to rectify the register. The Applicant contended that the 1st Defendant suffers from dementia and mild cognitive impairment due to advanced age and could not protect his interests in the suit. The court framed a single issue: whether the application had merit. Relying on MMM v AMK [2016] KEHC 4741 (KLR), which interpreted Order 32 Rule 15 as requiring a judicial inquiry with two stages - questioning of the person by the court and medical evidence - the court conducted an inquiry in open court on 19th February 2025. It observed that the 1st Defendant had no recollection of his relationship with the Plaintiffs or of the matters in dispute. A psychiatric report by Dr. Praxides E. Pessah diagnosed moderate major neurocognitive disorder (Alzheimer's type) and opined that he could not be relied upon to make executive decisions. The court concluded the 1st Defendant may be incapable of protecting his interests, allowed the application, appointed Chepkirui Kositany as guardian ad litem and party to the suit, and ordered costs of the application to be in the cause. The Plaintiffs did not oppose the application; the 2nd and 3rd Defendants neither attended nor responded.

Key legal issues

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Whether the Applicant should be appointed guardian ad litem of the 1st Defendant under Order 32 Rule 15 of the Civil Procedure Rules

Holding

The application was allowed; the court found, following a judicial inquiry and medical evidence, that the 1st Defendant is incapable of protecting his interests and appointed the Applicant as guardian ad litem.

Reasoning

Order 32 Rule 15 extends to persons not adjudged of unsound mind but found on inquiry to be incapable of protecting their interests. Following MMM v AMK, the court held that a judicial inquiry with two stages - questioning by the court and medical evidence - is required. The court questioned the 1st Defendant in open court and observed he had no recollection of the dispute. A psychiatrist's report diagnosed moderate major neurocognitive disorder (Alzheimer's type) and opined he could not make executive decisions.

p. 5

Legal principles established

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  • Before appointing a guardian ad litem under Order 32 Rule 15, the court must conduct a judicial inquiry comprising questioning of the person by the court and medical evidence

Court orders

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  1. 1.Chepkirui Kositany is appointed as guardian ad litem of the 1st Defendant, John Kositany
  2. 2.Chepkirui Kositany is made a party in this suit as guardian ad litem of the 1st Defendant, John Kositany
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 32 Rule 3(2)
  • Civil Procedure RulesOrder 32 Rule 15
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (2)

  • MMM v AMK
    [2016] KEHC 4741 (KLR)
  • Balakrishnan v Balachandran
Jurisdiction invoked
Order 32 Rules 3 & 15 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenneth & another (Both Suing as Legal Representatives and Beneficiaries of the Estate of the Late Joel Kiprotich Kiget) v Kositany & 2 others; Kositany (Applicant) (Environment and Land Case 24 of 2019) [2025] KEELC 5259 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5259/eng@2025-07-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.