Eno v Family

a. That leave be granted to the Intended Interested Party/Applicant to be enjoined as a party to these proceedings; b. That the Petitioner be permanently restrained from denying the Interested Party/Applicant and other beneficiaries/children access to their father, DMO, at his residence or any other place; c. That the Petitioner and the Intended Interested Party/Applicant be appointed as joint interim Guardians ad litem to jointly perform the functions and tasks sought by the Petitioner in the primary Notice of Motion dated 30 October 2025; d. That the costs of the application be borne by the Petitioner. 3. During the preliminary stages of these proceedings, the Applicant formally withdrew prayers relating to the stay or setting aside of any orders already issued in favour of the Petitioner, having established that no such orders were active at the time of the Application's filing. 4. The Application is heavily contested. The Petitioner filed a Replying Affidavit sworn on 16 January 2026, vehemently opposing the joinder and the substantive prayers. Written submissions were subsequently filed by the Applicant on 23 February 2026 and by the Petitioner on 27 February 2026. The Applicant's Case 5. The Applicant's case is predicated entirely on the assertion that he is the biological son of the Ward. According to the Supporting Affidavit sworn on 24 December 2025 and the Supplementary Affidavit sworn on 22 February 2026, the Applicant claims that the Ward maintained a second family with RJ, whom he describes as the Ward's second wife. The Applicant asserts that he has 2 biological brothers from this union: JM and EM. To support this, he annexed copies of their Kenyan National Identity Cards. 6. To further bolster this claim of a second family, the Applicant annexed an Affidavit sworn by RJ. In her Affidavit, she deponed that she is the second wife of the Ward and that the two were blessed with three children. She further deponed that she was aware that the Ward's first wife, EK (now deceased), had six adult children with the Ward, including the Respondent herein. 7. The core of the Applicant's grievance is that the Respondent initiated the guardianship proceedings in absolute secrecy, deliberately concealing the existence of the second family from the Court. The Applicant alleges a systematic campaign of alienation and isolation. He claims that the Respondent, who lives near the Ward, has held the Ward captive, hired new caregivers with strict, unlawful instructions to deny the Applicant and his siblings access, and confiscated the Ward's mobile phone to sever all lines of communication. 8. The Applicant contends that prior to the hiring of a formal caregiver, he lived with the Ward, took him for medical checkups, cooked for him, and attended to his daily needs. Consequently, the Applicant argues that his exclusion from the guardianship matrix is unlawful, an affront to his fundamental constitutional rights, and contrary to the best interests of the Ward, who is allegedly suffering mental anguish due to this forced separation. The Respondent’s Case 9. The Respondent's Replying Affidavit, sworn on 16 January 2026, paints a starkly different and deeply concerning picture. The Respondent categorically denies the existence of any second family. He depones that, to the best of his knowledge, he has no step-siblings, and that the Applicant and his purported brothers are complete strangers to him and to the Ward's recognized estate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4035/eng@2026-03-30 2

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10. The Respondent challenges the Applicant's locus standi at the most fundamental level, pointing out that the Applicant has failed to adduce any conclusive, legally recognizable documentary evidence— such as a Birth Certificate, a letter from a local chief, or a sworn Acknowledgment of Paternity—to prove that the Ward is his father. The Respondent asserts that the mere production of national identity cards belonging to the Applicant and his siblings (which notably bear different surnames and trace origins to different localities) falls woefully short of proving a biological or legal nexus to the Ward. 11. The Respondent raises severe allegations of financial impropriety that cast a long shadow over the Applicant's motives. The Respondent depones that the Applicant and his siblings were opportunistically brought on board by MMO, the Respondent's sister. The Respondent alleges that it was during this exact period—between 2022 and 2024, whilst the Respondent was away—that the mentally vulnerable Ward was swindled out of Kshs. 1.8 million. 12. Consequently, the Respondent argues that the strict security precautions and medical protocols currently in place, which do indeed restrict access to the Ward, are not acts of malice but are absolutely necessary for the Ward's welfare. In light of the Ward's medical condition, the Respondent contends that these protocols protect the Ward from further financial exploitation and prevent unregulated visits that serve as psychological triggers, thereby interrupting the daily routine managed by professional caregivers. Analysis & Determination 13. Having reviewed the pleadings, the documentary annexures, the written submissions, this Court distils the dispute into the following determinative legal issues: a. Whether the Applicant has discharged the evidentiary burden required to establish a biological or legal familial relationship with the Ward, thereby establishing locus standi to intervene in these private family proceedings. b. Whether the Applicant has met the stringent jurisprudential threshold for joinder as an Interested Party under Order 1 Rule 10(2) of the Civil Procedure Rules. c. Whether the Applicant is a fit and proper person to be appointed as a joint interim Guardian ad litem and Co-Manager of the Ward's estate under the Mental Health Act; Evidentiary Threshold for Paternity and Locus Standi 14. The threshold question that permeates every facet of this Application—and upon which the entire edifice of the Applicant's claims rests—is whether DK is, in fact and in law, the son of DMO. The Applicant's claim to joinder, his demand for access, and his prayer for joint guardianship all hinge upon this foundational premise. If he is not legally recognized as a son, he is a stranger to the estate, and his application must collapse in limine. 15. The law of evidence in Kenya is uncompromising on the allocation of the burden of proof. Section 107(1) of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Furthermore, Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. 16. In civil proceedings, this burden is discharged on a balance of probabilities. The Applicant seeks to establish a biological nexus to the Ward without the benefit of primary, uncontroverted documentation. The courts have consistently held that the standard of proof regarding paternity https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4035/eng@2026-03-30 3

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and familial relationships, particularly where children born out of wedlock or from undocumented customary unions are concerned, requires cogent and persuasive evidence. The legal maxim, the burden of proof lies upon him who affirms, not he who denies, applies forcefully here. The Applicant affirmed a biological relationship; the burden does not shift to the Respondent to disprove it until a prima facie case is established. 17. In the absence of a Birth Certificate bearing the Ward's name, paternity may be established through alternative legal mechanisms. These include a sworn Affidavit of Acknowledgment of Paternity (AOP) voluntarily signed by the father, conclusive DNA testing, or a legal presumption of marriage arising from long cohabitation as articulated in section 119 of the Evidence Act. 18. The Applicant relies heavily on the Affidavit of his mother, RJ. However, in adversarial civil litigation, an Affidavit asserting marriage and paternity, standing alone and fiercely contested by the recognized legal family, is inherently self-serving. It is insufficient to cross the threshold of a balance of probabilities. 19. As outlined in the seminal Court of Appeal decision Mary Njoki v John Kinyanjui Mutheru & 3 Others [1985] eKLR, the onus of proving a customary law marriage or long cohabitation rests squarely on the party asserting it. The evidence regarding the required formalities must be cogent and persuasive. 20. Regarding the alleged verbal admission by MMO that the Applicant is a step-brother, the Court agrees entirely with the Respondent's submissions. The admission was not made under oath, MMO did not swear an Affidavit to that effect, and critically, the Respondent was deprived of the opportunity to cross-examine her on this assertion. Under the strict rules of evidence, an unsworn, out-of-court statement cannot be relied upon to definitively establish legal paternity, particularly when the primary respondent expressly denies it and raises allegations of financial fraud against the individuals relying on that statement. 21. The Applicant affirmed a biological relationship but failed to tender the requisite documentary, scientific, or robust circumstantial evidence to prove it. Consequently, in the eyes of the law and for the purposes of these specific guardianship proceedings, the Court finds that the Applicant has failed to establish locus standi. He remains a stranger to the Ward's estate. Fiduciary Duties and Appointment of Joint Guardians 22. Notwithstanding the failure to establish locus standi, the Court considers it prudent to address the Applicant's substantive prayer to be appointed as a joint interim Guardian ad litem and co-manager of the Ward's estate alongside the Petitioner. The Applicant cites the need for checks and balances in the best interests of the Ward, arguing that his inclusion would represent the interests of the second family. 23. The management of estates and the personal welfare of persons suffering from mental disorders is governed stringently by the Mental Health Act. Section 26 empowers the High Court, upon inquiry, to make orders for the management of the estate and the guardianship of a person suffering from a mental disorder by any near relative or other suitable person, which may include the Public Trustee. 24. The jurisprudence surrounding the Act emphasizes that the protection of the incapacitated person is the Court's paramount concern. A manager appointed under the Act assumes a heavy fiduciary role. Section 34 explicitly states that a manager shall be deemed to be a trustee under any other law for the time being in force. This creates a strict trust relationship where the property is held solely on behalf of, and for the benefit of, the patient. 25. In assessing who should be appointed as a guardian or manager, the Court is guided by three primary factors : https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4035/eng@2026-03-30 4

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a. The quality of medical evidence establishing the mental disorder and lack of capacity. b. The fitness and probity of the proposed guardian or manager. c. The overarching assurance that the proposed manager will utilize their powers strictly for the benefit, dignity, and welfare of the Ward. 26. Modern interpretations of mental health law in Kenya are increasingly guided by Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which forms part of Kenyan law via Article 2(6) of the Constitution. The CRPD mandates a paradigm shift from substituted decision-making (where a guardian completely overtakes the patient's agency) to supported decisionmaking, ensuring that legal interventions are the "least restrictive possible" and prioritize the Ward's will, preferences, and dignity. 27. Courts have, in highly specific circumstances, appointed joint guardians from warring factions of a family to ensure transparency and prevent the monopolization of an estate. For instance, in the recent case of In re ET KEHC 137 (KLR), the Court directed two opposing sides of a family to nominate one joint guardian each to manage the patient's affairs. To protect the estate from both factions, the Court specifically excluded the guardians' powers to alienate, sell, or transfer immovable property. Similarly, in In re Application for Appointment as Guardian Ad Litem of CNK KEHC 17632 (KLR), the Court appointed multiple sons as joint guardians with the express consent of the broader family to prosecute a land case on behalf of their incapacitated father. 28. However, the precedent in the cited cases is fundamentally distinguishable from the present case. In those matters, the warring factions were recognized, legally undisputed members of the patient's family. In the instant case, the Applicant's familial status is entirely unproven. It would be a gross miscarriage of justice, and a severe dereliction of this Court's protective parens patriae duty under the Mental Health Act, to appoint an unverified individual—a legal stranger—as a fiduciary guardian over a vulnerable adult's estate. 29. Furthermore, the statutory requirement is that a guardian must be a fit and proper person capable of proper care. The Respondent has sworn a Replying Affidavit alleging that the Ward was swindled out of Kshs. 1.8 million during the exact temporal window (2022-2024) when the Applicant and his siblings were introduced to the Ward's household. 30. While this remains an unproven allegation at this stage, the mere existence of a severe financial cloud over the Applicant's past interactions with the Ward raises an insurmountable red flag. In matters of trust and equity, a fiduciary must be beyond reproach. The Court cannot, in good conscience and in adherence to its duty to protect the Ward, grant fiduciary control over a mental health patient's assets to an individual accused by the primary family of exploiting that very patient. The Applicant's request for joint guardianship is therefore legally untenable, practically perilous, and is hereby denied. The Right of Access vs. The Best Interests of the Ward 31. The Applicant seeks a permanent injunction restraining the Respondent from denying him and his siblings access to the Ward at his residence or at any medical facility. The Applicant argues that isolating the Ward from his purported second family is an affront to their God-given rights, is traumatizing to the Ward, and violates fundamental constitutional rights to family. 32. The right of family members to access, care for, and associate with elderly or ill relatives is recognized as a fundamental pillar of Kenyan societal values and constitutional rights. Family support and connection are crucial for the social, mental, and physical health of vulnerable older persons, preventing isolation https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4035/eng@2026-03-30 5

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and improving the quality of their remaining years. The family unit is a microcosm of society, providing practical assistance and protection. 33. However, this right of access is not absolute, nor does it operate in a vacuum. When an individual is diagnosed with a mental disorder and falls under the protective ambit of the Mental Health Act, the overriding legal standard shifts entirely to the best interests of the Ward. 34. The High Court exercises a parens patriae jurisdiction over persons with mental disorders. This means that the Court acts as the ultimate protector of the vulnerable individual, prioritizing their medical stability, psychological peace, and protection from harm over the emotional or proprietary demands of third parties, or even family members. 35. The Respondent has adduced evidence that the Ward is currently under the care of medical professionals and dedicated caregivers. He deponed that unregulated visits from the Applicant disrupt the Ward's established routine and act as a psychological trigger, leading to adverse episodes. The Applicant attempts to rebut this by contending that no medical reports filed in Court explicitly state that family visits are adverse to the Ward. 36. The Court must carefully weigh these competing claims. Given the Court's primary and insurmountable finding that the Applicant has failed to prove his biological relationship, he is legally positioned in this suit as a member of the general public, not a family member. 37. A person suffering from a mental disorder retains fundamental rights to privacy, dignity, and a tranquil therapeutic environment, free from unauthorized intrusions. It is entirely within the lawful purview of the recognized family members and the appointed medical caregivers to regulate access to the Ward. Such regulation ensures that the therapeutic environment is not compromised by individuals whose motives are questioned and whose legal relationship to the patient is non-existent. 38. If the Applicant genuinely believes he is the biological son of the Ward, the proper legal recourse is not to hijack a protective guardianship proceeding with interlocutory injunctions. The correct procedure is to institute separate, substantive proceedings to definitively establish paternity—perhaps by seeking specific court orders for a DNA test under the appropriate statutory framework. 39. Until such a legal declaration of paternity is obtained through the proper channels, the Applicant cannot utilize an interlocutory application under the Mental Health Act to force access to a vulnerable, incapacitated adult against the express wishes of the primary caregivers. The prayer for a permanent injunction granting access is thus without legal foundation and is denied. 40. Accordingly, the Notice of Motion Application dated 24 December 2025 is found to be devoid of legal merit and is hereby dismissed in its entirety. The costs of this Application shall be borne entirely by the Applicant. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF MARCH 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For Petitioner: Mr Muriithi For Interested Party: Mr. Karomo For Applicant/Intended Interested Party: Asiyo h/b Nzavi Court Assistant Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4035/eng@2026-03-30 6

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