Mwasiwa v Swan Island Ltd & another (Environment and Land Case 2 of 2021) [2026] KEELC 3538 (KLR)

4. b. That this Honorable Court be pleased to grant leave to the Applicant to amend the Plaintifi's pleadings to replace the name Ramadhan Bakar Mwasiwa with that of Mohamed Rama Beya as the Plaintifi c. Any other order that the court deems fit to grant The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 9 paragraphed Supporting Afidavit of –Mohamed Rama Beya, the Applicant herein, sworn and dated the same day with the application. The Applicant averred that: a. The afiant is the biological son of Ramadhan Bakari Mwasiwa, the Plaintifi herein. b. For a while a now, his father, the Plaintifi herein, had not been lucid, as he had been unable to concentrate on conversations, frequently experiences confusion and sufiers from persistent hallucinations. c. On the 2nd day of May, 2025, he took him to Msambweni County Referral hospital for professional mental health assessment, which assessment was duly conducted by one Dr. Kevin Wamula, who then prepared a report. Annexed and marked as “MRB – 1” in the afidavit was a copy of the report dated 2nd May 2025. d. Based on the report, his father was sufiering from dementia, rendering him incapable of efiectively prosecuting his case. e. The afiant was willing, ready and able to take over the prosecution of this case on his behalf. f. The afiant swore this afidavit in support of his application for substitution of the Plaintifi. III. Submissions 5. While all the parties were present in Court, they were directed to have the Notice of Motion application dated 16th June, 2025 be disposed of by way of written submissions and all the parties complied. Subsequently, on 22nd April, 2026 a ruling date was delivered accordingly. A. The Written Submissions by the Applicant. 6. The Applicant filed their written submissions dated 25th July, 2025 through the Law firm of Messrs. Onyango Onunga Advocates. M/s. Mubassu Advocate commenced their submissions by staying that the application was filed seeking leave of this Honourable Court to substitute the current Plaintifi. This was being done as the mental condition by the current Plaintifi was deteriorating. He has been rendered incapable of prosecuting this matter. Further, the application, sought the leave for the Applicant to sue as the Plaintifis next friend was anchored in the overriding objective of ensuring substantive justice and the eficient administration of proceedings. It was brought pursuant to the relevant provisions of the Civil Procedure Act, Cap. 21 and Rules, enabling the Court to make such orders as were necessary to meet the ends of justice. 7. The Learned Counsel stated that this Honourable Court was invited to consider the medical evidence adduced and the legal necessity for substitution. Also given that the Plaintifi was no longer able to comprehend, instruct, or participate meaningfully in the litigation. The Applicant, being a suitable representative within the meaning of the law, respectfully moves the Court to safeguard the Plaintifi's interests by allowing the proposed substitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3538/eng@2026-04-23 2

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8. Towards this end, the Learned Counsel relied on the following two ( 2 ) issues for determination. Firstly, whether the Plaintifi was, by reason of mental infirmity, incapable of continuing to prosecute the suit. The Counsel averred that the Plaintifi was prevented by dementia from conducting the prosecution of this case. The Applicant attached a medical report dated 2nd May, 2025, which report noted that upon subjecting the Plaintifi to a mental examination, results showed that the Plaintifi had been diagnosed with dementia and was instantly put under medication to help manage the condition. The attached medical report further noted that the patient's illness was severe leading to hallucinations. The medical examiner also noted that the Plaintifi herein could not concentrate and would on occasions go ofi-topic. Thus, the question of whether or not a litigant was competent to testify in court was provided for under the provision of Section 125 of the Evidence Act, Cap. 80. It provides as follows: 'All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause. A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them. 9. Therefore, based from the medical report dated 2nd May, 2025, the Learned Counsel submitted that the Plaintifi lacked the cognitive ability to understand and participate in the proceedings of the case herein. Moreover, the medical oficer who drafted the medical report recommended that the Plaintifi be assisted when making decisions pertaining to his health and finances. 10. Secondly, whether the Applicant should be granted leave to sue as the Plaintifis next friend. The Learned Counsel averred that it was worth pointing out from the outset that vide their Grounds of Opposition, the Defendant had contended that the instant application was incompetent by reason of the fact that the Applicant herein had not been appointed a guardian by the High Court. It was the Counsel’s firm opinion that this line of argument was misplaced and should be regarded in its entirety. The Applicant had not appointed himself a guardian. In fact, what was for consideration before the Court was it should be pleased to grant him leave to prosecute the suit as a next friend. It was an Application perfectly grounded in law. To buttress on this point, the Counsel relied on the provision of Order 32 Rule 15 of the Civil Procedure Rules, 2010. It provides as follows: '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 infirmity, to be incapable of protecting their interests when suing or being sued.' 11. He held that when this matter came up for hearing on the 27th March 2025, Counsel for the Plaintifi informed this Honorable Court that the Plaintifi could not proceed due to mental incapacity. The Honorable Court directed that a medical report to that efiect be filed. Indeed, the said report was duly filed and the Honorable Court moved accordingly. Additionally, the jurisprudence surrounding the provision of Order 32 Rule 15 of the Civil Procedure Rules, 2010 made it clear that a formal adjudication of unsoundness of mind was not a prerequisite for the court to act. 12. What was required was a judicial inquiry, and upon such inquiry, the court may find that a party was incapable of protecting their interests due to mental infirmity. In the present case, the Applicant had placed before this Honorable Court suficient material, both factual and medical, to warrant such a finding. The application was therefore properly anchored in law and procedure. The proposed https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3538/eng@2026-04-23 3

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substitute, the Applicant, had satisfied the legal requirements of a next friend as he was of sound mind and above the age of majority, 41 years old; holds a demonstrable interest in the Plaintifi's welfare, being that he was the Plaintifi's son and that he had no confiict of interest and was committed to safeguarding the Plaintifi's rights. In addition to that, the Applicant had demonstrated that he would bear or facilitate costs associated with the litigation, as may be directed by the Court. Furthermore, the suit ought not to abate on account of the Plaintifi's incapacity. Pursuant to the Overriding Objective enshrined under the provision Sections 1A and 1B of the Civil Procedure Act, Cap. 21 this Honourable Court was mandated to facilitate the just, expeditious, proportionate, and eficient resolution of civil disputes. Accordingly, permitting substitution or representation ensures that the cause of action remained alive and that justice was not defeated by procedural technicalities arising from the Plaintifis mental condition. Therefore, the Counsel submitted that in the circumstances, it would be fair, just, and in the interest of justice that the Applicant herein was allowed to act as the Plaintifi's next friend for purposes of this suit. 13. The issue of guardianship was neither here nor there for purposes of the instant Application and the prayers sought herein. From the foregoing, the Applicant had demonstrated a legitimate interest in the proceedings and met the requirements of a "next friend" or legal representative under the applicable civil procedure rules. The Counsel prayed that the application dated 16th June, 2025 be allowed as prayed. IV. Analysis & Determination. 14. I have carefully read and considered the pleadings herein by the Applicant, the myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures. 15. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has four (4) framed issues for its determination. These are:a. Whether suficient grounds exist to substitute the Plaintifi with his son, Mohamed Rama Beya, as next friend. b. Whether the Court should grant leave to amend pleadings to refiect the substitution. c. What orders should issue as to costs. - Issue No. a). Whether suficient grounds exist to substitute the Plaintifi with his son, Mohamed Rama Beya, as next friend. 16. Under this Sub–title, the main gist of the matter is on whether suficient grounds exist to substitute the Plaintifi with his son, Mohamed Rama Beya, as next friend. 17. The provision of Order 32 rule 1 of the Civil Procedure Rules, 2010 states as follows: 18. (i) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. (ii) Before the name of any person shall be used in any action as next friend of any infant, where the suit is instituted by an advocate such person shall sign a written authority to the advocate for that purpose and the authority shall be filed. Consequently, the provision of Order 32 Rule 15 of the Civil Procedure Rules, 2010 states as follows:“ The provisions contained in rules 1 to 4, 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3538/eng@2026-04-23 4

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the court on inquiry, by reason of unsoundness of mind or mental infirmity to be incapable of protecting their interests when suing or being sued. 19. According to the Appellant, the provision of Order 32 Rule 15 provides that for persons who have not been previously adjudged to be of unsound mind, the court, on application, has to conduct an inquiry to satisfy itself as to the unsoundness of mind or mental infirmity before appointing a guardian ad litem. 20. In the case of “Balakrishnan – Versus - Balachandran (1956)1 mad lj 459”, as was quoted by the court in the case of:- “MMK – Versus - AMK, Miscellaneous Civil Application No. 51 of 2015 [2016] KLR”, the Indian court in interpreting a similar provision under the Indian Civil Procedure Rules, the provision of Order XXXII Rule 15 of the Indian Civil Procedure Code, held that:“ … the said rule is intended to ensure that no man is adjudged a lunatic without proper enquiry, and that the court should hold a judicial inquiry and may seek the assistance of medical experts.” 21. The Indian court went further to state: “ That the procedure involves a judicial inquiry which consists normally of two parts: (1) Questioning the lunatic (or person in question) by the judge himself in open court, or in chambers, in order to see whether he is really a lunatic and of unsound mind (or unfit to protect his interests), and (2) as the court is generally presided over only by a layman, to send the alleged lunatic to a doctor for report about his mental condition after keeping him under observation for some days…. When this elementary precaution of judicial inquiry prescribed by law is not observed, I am afraid that the laws of this country will not allow a man to be declared a lunatic and a guardian appointed for him, on such basis.” 22. The Court has carefully considered the application, the supporting afidavit, and the annexed medical report. The provision of Order 32 Rule 1 of the Civil Procedure Rules, 2010 expressly provides that suits by persons of unsound mind shall be instituted or continued by a next friend. The medical report of Dr. Kevin Wamula dated 2nd May 2025 confirms that the Plaintifi, Ramadhan Bakar Mwasiwa , sufiers from dementia, manifesting in confusion, hallucinations, and inability to concentrate. This evidence satisfies the threshold under Sections 26 and 28 of the Mental Health Act, Cap. 248, which empower the Court to appoint a guardian or manager to act on behalf of a person sufiering from mental disorder. 23. Undoubtedly, the Applicant, Mohamed Rama Beya, is the biological son of the Plaintifi and has demonstrated readiness and willingness to prosecute the matter on his father’s behalf. In the course of time, Courts have consistently held that once medical incapacity is established, the Court is dutybound to safeguard the rights of the incapacitated person by appointing a suitable representative: see “In re Estate of SMM (Incapacitated Person) [2017] eKLR” and “In re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR”. Further, the inherent jurisdiction of the Court under Section 3A of the Civil Procedure Act obliges it to fashion remedies that serve the ends of justice, as emphasized in the case of of:- “Republic – Versus - Attorney General & Another ex parte Kithinji [2014] eKLR”. 24. In the circumstances, the Court is satisfied that suficient grounds exist to substitute the Plaintifi with his son, Mohamed Rama Beya, as next friend. Such substitution will ensure that the Plaintifi’s https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3538/eng@2026-04-23 5

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proprietary rights in the suit property are efiectively safeguarded and that the matter proceeds to determination without undue prejudice. - Issue NO. b). Whether the Court should grant leave to amend pleadings to refiect the substitution. 25. Under this Sub–title, the main gist of the matter is on whether he Court should grant leave to amend pleadings to refiect the substitution. Having found that suficient grounds exist to substitute the Plaintifi with his son, the next question is whether the pleadings should be amended to refiect this substitution. The law is clear that pleadings are not immutable; they may be amended at any stage of proceedings with leave of the Court, provided such amendment does not occasion prejudice to the opposite party. The provision of Order 8 Rule 3(1) of the Civil Procedure Rules, 2010 empowers the Court to grant leave to amend pleadings on such terms as may be just. The guiding principle, as stated in the case of:- “Eastern Bakery – Versus - Castelino [1958] EA 461”, is that amendments should be freely allowed if they can be made without injustice to the other side, and any prejudice can be compensated by costs. 26. In the present case, the amendment sought is not intended to introduce a new cause of action or alter the substance of the claim. Rather, it is a procedural necessity fiowing from the Plaintifi’s incapacity and the Court’s finding that substitution is warranted. The amendment will merely refiect the new status of the Applicant as next friend, thereby ensuring clarity in the record and enabling the suit to proceed in a manner consistent with the law. The Defendant, Swan Island Limited, will sufier no prejudice, as the cause of action—being a claim for adverse possession—remains unchanged. 27. Accordingly, guided by the provision of Order 8 Rule 3 Civil Procedure Rules, 2010 the principles in the case of:- “Eastern Bakery (Supra)”, and the Court’s inherent jurisdiction under Section 3A of the Civil Procedure Act, Cap. 21, I am fully satisfied that leave to amend the pleadings to refiect the substitution ought to be granted. Issue No. c). What orders should issue as to costs. 28. It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh (2014) eKLR” and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”. 29. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In the present application, the orders sought are procedural in nature, intended to safeguard the Plaintifi’s rights in light of his medical incapacity. The Defendant, Swan Island Limited, has not demonstrated any prejudice that would warrant an award of costs against the Applicant.. 30. Accordingly, the Court finds that Costs of this application shall be in the cause. V. Conclusion & Disposition 31. In long analysis, the Honorable Court has carefully considered and weighed the confiicting parties’ interest as regards to the Preponderance of Probabilities and balance of convenience. Ultimately in view of the foregoing detailed and expansive analysis to the application, this court arrives at the following decision and makes the following orders:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3538/eng@2026-04-23 6

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a. That the Notice of Motion application dated 16th June 2025 be and is hereby found to have merit and hence allowed in the following terms: i. Prayer (1) is ALLOWED. Mohamed Rama Beya is hereby appointed and enjoined in this suit as the next friend of the Plaintifi, Ramadhan Bakar Mwasiwa , pursuant to Order 32 Rule 1 of the Civil Procedure Rules and Sections 26 & 28 of the Mental Health Act (Cap 248). ii. Prayer (2) is ALLOWED. Leave is hereby granted to the Applicant to amend the pleadings to substitute the name of the Plaintifi, Ramadhan Bakar Mwasiwa , with that of Mohamed Rama Beya. iii. Prayer (3) is ALLOWED to the extent that the Applicant shall file and serve the amended pleadings within twenty-one (21) days from the date hereof, and the Defendant shall have liberty to respond in accordance with the Civil Procedure Rules. b. That the substitution and amendment herein shall not alter or prejudice the substantive cause of action, being a claim for adverse possession, which shall proceed to hearing and determination on its merits. c. That consequently, and by virtue of the granting of the above application: i. All pleadings, afidavits, and documents filed henceforth shall refiect the substitution of Mohamed Rama Beya as Plaintifi and next friend. ii. The medical report of Dr. Kevin Wamula dated 2nd May 2025 shall remain on record as evidence of incapacity of the original Plaintifi. iii. The Defendant shall have liberty to raise any consequential objections or responses arising from the substitution within the timelines provided by law. d. That for expediency sake, there be a final Pre – Trial Conference conducted on 9th July, 2026 in a accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be hearing on 12th November, 2026 through Physical means. e. That the costs of the Notice of Motion application dated 16th June, 2025 shall be in the cause. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 23RD DAY OF APRIL 2026. …………..……………. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. M/s. Asmaa Maftah, the Court Assistant. b. M/s. Mubassu Advocate for the Plaintifi/Applicant. c. M/s. Manyara Advocate holding brief for Mr. Omollo Advocate for the Defendant/ Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3538/eng@2026-04-23 7

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