Mmn v Kilonzo & Company Advocates

The Respondent’s Response 4. The Respondent law firm has opposed and raised a Preliminary Objection on the following grounds: 1. That the purported General Power of Attorney relied on by the said ENM is incurably defective, 2. That the Applicant has no capacity and is incapable of sustaining the A proceedings, 3. That the Respondent, as cited, is incapable of being sued, 4. That the application is not supported by any substantive claim and is defective in limine, and 5. That the cause of action, if any, is time barred. Analysis & Determination 5. A power of attorney (in some jurisdictions sometimes) also referred to as a letter of attorney, is a written authorization to operate or act on anther’s behalf in private affairs. In it, and by if the donor confers on the donee (also called an attorney), the power to do for him what he could have done himself under normal circumstances. 6. There is the principle in law, that he who does anything through another, does it himself. In the case of a power of attorney, the attorney does for the donor, what the donor would do himself. In other words what the donor has the legal capacity to do. Not what he is barred by the law from doing or what he lacks the legal capacity to do. 7. I hold that a power of attorney cannot operate where there is lack of capacity or to cure legal incapacity. This power is not merely for convenience’s sake, or for aiding those that are busy. It also can cure factual incapacity such as old age, occupational stress, geographical unavailability, and even physical incapacity. But not legal incapacity, such as being a minor, or having a mental disorder. 8. In this particular case there is medical evidence that the Applicant MMN now aged 92 years, has for many years been suffering from mental disorder. In a Medical Report dated 24th April 2023 when the subject was aged 90 years, Dr Silvanus D. Wabwire a Consultant Physician & Neurologist), reported as follows: “ Mr MN was at our clinic for review last week. I had initially seen him in September 2019 for neurological assessment following a stoke in 1985 from which he had not fully recovered. The stroke affected a big part of the left side of the brain, resulting in difficulties with speech and language functions. He had limitations in comprehension and fluency of speech.” 9. From this Report, the Applicant has been and still suffers from mental disorder. A fact that is also admitted in the Supporting Affidavit of his wife the said ENM . Who is also donee of the Applicant’s power of attorney. 10. A power of attorney will lie where the donor just like attorney is an adult and has mental capacity. It being based on consensus and voluntary approval, it is for instance automatically revoked if the donor subsequently loses mental capacity. To create a power of attorney, the donor must have mental capacity. Hence it cannot be donated where the donor lacks mental capacity, is mentally incapacitated, or suffers from mental disorder. 11. The donor must be an adult, and be able to understand and make decision for himself. This is called mental capacity. Therefore, to be able to appoint an attorney, the donor should have mental capacity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13256/eng@2025-07-30 2

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A person with a mental disorder such as the Applicant, is at law incapable of donating the power of attorney, or even appointing an attorney. He also cannot institute legal proceedings in his name. 12. The person who is at law authorized to manage the affairs and the property/estate of a person with mental disorder, is a guardian and not an attorney under a power of attorney. Such a guardian is appointed by a court of law under the Mental Health Act (Cap 248 Laws of Kenya). The Act regulates the care and management of persons with mental disorders. 13. It does so, by providing for guardianship of those with mental disorder, their care, as well as the administration and management of their estates. It would have been different if the purported attorney ENM would have obtained court orders for Mr Mutuku’s guardianship and management of his estate/ property. 14. In re JMW [2021] eKLR, Thande J observed that upon an Application being made under Cap 248, the court makes an inquiry and makes a finding that the subject is a person suffering from mental disorder and incapable of managing his affairs, and then issues orders for his guardianship; and for the management of his estate. 15. Had E been appointed such guardian, she would have filed this Application and proceedings in her name as guardian. That not being the case here, and these proceedings are filed in the name of the Mutuku a person suffering from mental disorder, they are fatally defective. Not even her swearing of the Supporting Affidavit can salvage them. This litigation strategy was wrong ab initio. 16. I sympathize with the old man’s circumstances, but this being a court of law, that is the farthest I can go, because I have to uphold the law. Even the balancing the scales of justice and the pursuit substantive justice has to be done within the bounds of the law. Anything that is done in the name of the law, has to be done within law, and in accordance with the law. The pursuit of justice was not meant to operate like an unruly horse. 17. In the end, this Court finds that the Preliminary Objection has merit, and hereby upholds it accordingly. With the consequence that this Application is hereby dismissed, and these proceedings are hereby terminated accordingly. 18. Given the Applicant’s mental status, his advanced age, and the need to encourage cordial relations between him and the Respondent law firm, there shall be no order as to costs. 19. This Application having been lost on a legal technicality of lack of legal capacity, it is my honest hope, that the Respondent law firm shall extend to the Applicant an olive leaf and find it necessary to discuss the Applicant’s wish with his family. Afterall, justice is not about who between the litigants is right. It is about what is the right thing to do. 20. The Advocate-Client relationship being a fiduciary one, Advocates’ clients and former clients, are in terms of Sections 47 and 51(1) of the Advocates Act, entitled to an account of their cases, as well as to their files. Advocates should voluntarily and happily without the need for legal compulsion through court, to render accounts to their clients, or deliver up a client’s file(s) or documents. 21. For a court to order an Advocate to account or deliver up the file(s) to the client, a formal Application has to be filed, the court’s jurisdiction has to be properly invoked, and the Applicant ought to not only have locus, but should also have the legal capacity to bring such proceedings. DATED AND DELIVERED AT NAIROBI ON THIS 30TH DAY OF JULY 2025. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13256/eng@2025-07-30 3

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