Oyatsi & 2 others v Nzai & 2 others (Environment and Land Case 21 of 2021) [2025] KEELC 18706 (KLR) (20 May 2025) (Ruling) Neutral citation: [2025] KEELC 18706 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT AND LAND CASE 21 OF 2021 FM NJOROGE, J MAY 20, 2025 BETWEEN DESTERIO ANDADI OYATSI ............................................................ 1ST PLAINTIFF KENNETH HAMISH WOOLER KEITH ......................................... 2ND PLAINTIFF ELISABETH KLEM (SUING AS EXECUTORS OF THE ESTATE OF THE LATE KIPYATOR NICHOLAS KIPRONO BIWOTT (DECEASED)) ...... 3RD PLAINTIFF AND STEPHEN CHARO NZAI ............................................................... 1ST DEFENDANT THE LAND REGISTRAR, KILIFI ................................................ 2ND DEFENDANT THE HON ATTORNEY GENERAL .............................................. 3RD DEFENDANT RULING 1. 2. The application for determination is a Chamber Summons application dated 16/12/2024 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 rule 10 (4) & (25) of the Rules thereto by the 1st Defendant. The orders sought are: 1. That the 1st Defendant Stephen Charo be excused from the proceedings and taking down of his evidence; 2. That the 1st Defendant’s adult son George Mwarandu Charo be substituted to testify on his behalf; 3. Costs be in the cause. The 1st Defendant has based his application on the grounds that he is suering from a memory lapse and is this unable to present a comprehensible narrative in his defense; that the applicant is his adult https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18706/eng@2025-05-20 1
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son and can articulate the 1st Defendant’s defence; and that the applicant is the 1st Defendant’s next of kin and well aware of the matters before court. 3. In support of the application is an adavit sworn by George Mwarandu Charo on the even date, wherein he deposed that the 1st Defendant, his father, was diagnosed with acute psychosis and depression (medical report exhibited as GMC 1) and that during his lucid periods, the 1st Defendant authorized him to represent his interests in this matter and give testimony. He exhibited a copy of the authority as GMC 2. 4. The Plaintis opposed the application. They led grounds of opposition dated 15/1/2025 raising the following grounds: 1. That the application is fatally defective and incompetent the same having been premised under the wrong provisions of the law; 2. That the application has been brought in violation of Order 32 rule 15 of the Civil Procedure Rules, 2010 as read together with Order 32 Rule 1-14; 3. That the application has also been brought in violation of Section 28 of the Mental Health Act; 4. That the Chamber Summons application dated 16/12/2024 and accompanying supporting adavit is therefore defective, irregular and an abuse of the process of the court deserving to be struck out for want of procedure. 5. The Court directed parties to le written submissions within specic timelines. Both the plaintis and the 1st Defendant led submissions. I have considered the said submissions in the preparation of the present ruling. 6. The applicant focused on the issue as to whether the rst defendant applicant is entitled to the relief sought. Counsel for the applicant submitted that technicalities should not hinder justice and quoted Article 159 of the Constitution of Kenya 2010 and the case of James Mangeli Musoo Versus Eezetec Limited 2014 KEELRC 761 eKLR. He further submitted that in analyzing the courts’ obligation with regard to procedure surrounding the excusing of a mentally and sound litigant from proceedings and appointing of a third party on their behalf the case of Wainaina Versus Mucheru and Another 2023 KEELC 16393 KLR is relevant. He submitted that in that case no medical examination report has been presented to court to demonstrate the mental status of the litigant while in the present case, a medical report has been provided. He also added that the 1st defendant’s son had provided the court with authorization given by the rst defendant for him to represent and protect the 1st defendant’s interest in the suit. That authorization is annexed as “GMC2” in the supporting adavit. Counsel beseeched this court to interpret those documents pursuant to the provisions of Order 9 Rule 2 of the Civil Procedure Rules which provide for “recognized agents” of litigants. He also relied on the case of Sevany Versus Kaur Wife of Amrik Singh 2023 KEELC 414 EKLR and Bernard Mbuti Kang’oroti Versus Njagi Gikungi and Another 2015 eKLR. He maintained that the present application does not seek the appointment of a guardian ad litem for the entire estate of the 1st defendant, but solely to have his son adduce evidence already submitted to this court and so protect the 1st defendant’s interest for the remainder of the suit. 7. On their part the plaintis submitted that the instant application has not been properly initiated under Order 1 rule 10 (4) of the Civil Procedure Rules. They stated that the sections of the law relied on provide for situations for ling of chamber summons and therefore do not come to the aid of the applicant for the nature of the case and orders sought in the present application. They submit that the right approach is stipulated in Order 32 Rule 15 of the Civil Procedure Rules 2010 as read with Section https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18706/eng@2025-05-20 2
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26 of the Mental Health Act. They maintained that in interpreting the said provisions the law requires that a person alleged to be of unsound mind should be treated as a minor for all intents and purposes. 8. Just like the 1st defendant the plaintis also relied on the case of Wainaina Versus Mucheru and Another 2023 KEELC 16393 KLR. They stated that according to Section 26 of the Mental Health Act a court must conduct a judicial inquiry before making an order to appoint a guardian to act for and on behalf of a person and judged to be of sound mind and they cited NM Versus Marete Ibutu and 8 Others 2021 eKLR in this regard. 9. The case of Faith Kananu Akwalu Versus David Mwenda Maingi ELC Appeal Number 100 Of 2019 2021 eKLR is also relied on for the proposition that a person seeking to have a guardian appointed for the estate of a person adjudged to be of unsound mind should le an originating summons or a petition before the High Court. They submitted that in MMM Versus A M K 2016 eKLR, Order 32 was discussed where the court stated that no man should be adjudged a lunatic without a proper inquiry. The case of Loghan Jenka Huawei Room Versus Teresia New Cafe Karanu and Another 2014 eKLR was also cited regarding instances when a party to a suit can be substituted for reasons of mental inrmity. 10. The plaintis therefore ask the court to dismiss the present application for failure to rely on the proper provisions of the law and also for failure to follow their appropriate procedure. 11. This court upon considering the application and the submissions of the parties has arrived at the conclusion that the application before it is a weighty one. It is one that requires the 1st respondent to be adjudged incapable of protecting his own interests in this case. However, the issue is what procedure ought to be employed in such a case where a third party is desired to be joined into proceedings to protect the interests of a litigant said to be of unsound mind. Of course such a litigant can not be deemed able to appoint an agent, otherwise he would not be regarded as of unsound mind. The proper course for such a person is to have a person appointed by court as Guardian Ad Litem. Therefore, much as the applicant submits that he is not seeking to have some Guardian Ad Litem appointed in respect of the entire estate of the 1st defendant, the circumstances he outlines qualify him to be in need of an application for him to be made some guardian ad litem in the present suit. Consequently, I agree with the submissions of the plaintis that the procedure employed by the applicant is unusual and can not avail him of the relief sought. 12. Order 32 is titled “SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND”. Rule 15 thereof provides as follows: “ 15. Application of rules to persons of unsound mind [Order 32, rule 15] The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental inrmity, to be incapable of protecting their interests when suing or being sued.” 13. Section 26 of the Mental Health Act is in Part XII of that Act titled “CARE AND ADMINISTRATION OF PROPERTY OF PERSONS WITH MENTAL ILLNESS.” It has the following provisions: “ 26. Application for administration https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18706/eng@2025-05-20 3
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(1) (2) (3) 14. An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by— (a) a supporter of the person with mental illness; or (b) the representative of the person where the person with mental illness has not appointed a supporter. An application under subsection (1) shall be submitted together with an adavit setting out— (a) the grounds upon which the application is made; (b) the full particulars as to the property and relatives of the person to whom it relates; and (c) a certied true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness. A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the— (a) person in respect of whom the application is made; or (b) where an application is made by a supporter to the representative of the person with mental illness. (4) Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given. (5) The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineectual. (6) The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the— (a) court to examine the person; or (b) person to be examined by a qualied registered mental health practitioner.” Bearing in mind the foregoing provisions of the las and case law cited, it is therefore the case as urged by the plaintis that the court ought to conduct an inquiry before making an order to appoint a guardian. As per Faith Kananu Akwalu (supra) and MMM Versus A M K (supra) this court nds that it would rst have to conduct an inquiry into the question of mental inrmity of the 1st Defendant before the Applicant can be appointed guardian ad litem. It is only after such an appointment of a guardian that the application for substitution can be made in this court to substitute the inrm litigant with a person abler than him to prosecute his suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18706/eng@2025-05-20 4
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15. The upshot of the foregoing is that the application dated 16/12/2024 lacks merit and is hereby struck out with no orders as to costs. An appropriate application shall be led before this court soonest if the applicant is so minded seeking the appropriate orders of guardian ad litem and the proper procedure upon such an application shall be followed before the court can consider joinder of the applicant as guardian. DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 20TH DAY OF MAY 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18706/eng@2025-05-20 5
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