Anastacia Wavinya v Martin Soi & 1 other

f. Any other order that this Honourable Court deems fit and just in the circumstances.” 2. The Application is supported by the affidavit of Anastacia Soi deponed that she has not been allowed to visit the Subject by the 1st and 2nd Respondent and the former has acted in contempt of the court order of 19th September 2024. That she has not seen her mother since 13th November 2024 and was locked outside the gate on 22nd November 2024, 29th November 2024, 6th December 2024, 13th December 2024, 20th December 2024 and 27th December 2024 and her children were denied from seeing their grandmother on 3rd January 2025, 10th January 2025 and 12th January 2025 before they travelled. The court was urged to allow parties to file submissions on the main application as mediation was not going to succeed. 3. The 1st Respondent filed a Supplementary affidavit in which he contended that the Applicant was invited for a general meeting to be held on 28th February 2025 vide a letter dated 19th February 2025 by the Mbaa Mulee Tema Clan but she refused to attend. He refuted the claim that he had denied the Applicant, her husband and children access to his house in Syokimau. The 1st Respondent annexed a medical report indicating that he had taken his mother to hospital on 28th February 2025 for medical examination. 4. The 2nd Respondent was enjoined on 28th May 2025 but has not filed any documents in response to the Application before the court. 5. The application was canvassed by way of written submissions. The Applicant in submissions dated 11th June 2025 submitted that she should unconditionally and without any limitations to visit, access and take care of her sick mother as she and the Respondents share equal rights. That the 1st and 2nd Respondent continues to violate their right to dignity and access to their mother. In addition, that the subject told the court that she wanted to spend time with all her children and communicate with them freely and confiscation of her phone impeded access. 6. It was submitted that it is fair to move the subject to the Applicant’s home where all other siblings can be at liberty to visit and that the Applicant is willing to ensure the subject enjoys the highest standard of health which she has done for over twenty years prior to filing of this suit. The applicant stated that she is willing to take care of the subject and accommodate the subject’s current caregiver so as to continue taking care of her. In addition, it was submitted that the 1st Respondent does not live in Kenya but in Cayman Island and should not be allowed to inhibit their mother from being visited and that the applicant should be the primary caregiver. 7. On his part through submissions dated 23rd June 2025 the Respondent submitted that before filing this application the applicant visited the subject which is an indication that the application has been overtaken by events. The Respondent submitted that it is the interest of the subject that she should continue residing in Syokimau which is easily accessible to health facilities, good weather, weekly doctor visits and physiotherapy treatment. Further, that under the Kamba customary law, it is the duty of the last born child to take care of the mother in her old age, and further that he has also hired a care giver. He contended that on 24th July 2024 when the subject was availed in court, she expressed her wish to continue living in the 1st Respondent’s house with the 2nd Respondent as the primary care giver and hence the status quo should be maintained and the applicant be directed to maintain peace and sanity during the visitations and visit only during day time. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19356/eng@2025-11-27 2

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Analysis and determination. 8. I have considered the application before the court, the affidavits on record as well as the submissions filed by the parties. The subject of these proceedings is the mother of the parties herein who cannot agree on who should be living with her as she is now elderly and infirm. The court record indicates that the subject appeared before this court and was examined by Muigai J on 29th July 2024. Among other orders made were that each and every child was free to visit or see or talk to their mother. The court also directed the parties to file submissions on the appointment of a legal manager and legal guardian for the subject’s estate and her welfare. That was to be done if they were unable to settle the dispute through the court annexed mediation. It would appear that parties did not agree. None of them filed submissions as directed. 9. The 1st Respondent states that he has no issue with the subject being visited but indicates that the visits can only be during the day. He also accused the applicant of becoming unruly during such visits and urges this court to beseech e rot keep her cool whenever she visits. The 1st Respondent does not dispute that he lives in Cayman Island in the USA but not in his house in Kenya. Their mother stays in his house with another of her sons. The Applicant who is the daughter of the subject alleges that she is never allowed to visit. None of the parties have disclosed what exactly it is that they are disputing about. Why would a brother deny his sister access to their mother? Or why would a sister create a fracas whenever she visits her mother in her brother’s house? It is my finding that there must be more than meets the eye in this case. Could it be that the siblings are more concerned with issues of succession while their mother is still alive instead of creating a warm and loving environment which is all that human being requires in their twilight years? Whatever real motives of the squabbling siblings may be, it is not healthy and that it is not in the interest of their mother that she should endure such a toxic environment, whereas, the order for her to live in the 1st Respondent’s house with the 2nd Respondent being her primary care giver, that arrangement is no longer tenable. In the premises, I find no merit in the arguments of the parties and instead I direct and order as follows:a. The subject shall be taken back to her home within 30 days of this ruling and a care giver and/or nurse be hired and their wages be the joint responsibility of the applicant and the respondent. b. In the alternative to order a) above, the Applicant and Respondents shall have the subject admitted into an old peoples home of their choice and will take care of her bills and any expenses she may incur. c. The Applicant and the 1st Administrator shall purchase a mobile phone for the subject to enhance communication with her family and friends. d. This being a family matter each party shall bear their own costs. Orders accordingly. RULING SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 27TH DAY OF NOVEMBER 2025. E N MAINA JUDGE In Presence of: Mr. Mburu for Kariithi for the Respondent Mr. Adera for Mr. Omwa for the Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19356/eng@2025-11-27 3

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C/A: Geoffrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19356/eng@2025-11-27 4

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