High Court 5655 of 2026

order appointing the Applicant as the Guardian and Manager of the Subject for the limited purpose of conducting, prosecuting, defending, instructing counsel in, and otherwise managing all aspects of the aforementioned Kajiado ELC Case No. 70 of 2018, BPM vs. Estate of TOK & 3 Others. Third, an authorization for the appointed Guardian to take all necessary procedural and substantive steps in the said suit on behalf of the Subject, including executing pleadings, swearing affidavits, testifying, and receiving correspondence. 3. The Application is buttressed by a Supporting Affidavit sworn on 16 February 2026, a Further Affidavit sworn on 17 March 2026, and a Medical Report prepared by Dr. Michael Musembi dated 16 February 2026. 4. The Subject is the Plaintiff in Kajiado ELC Case No. 70 of 2018. The pleadings annexed to the present Application reveal a dispute of staggering factual complexity, rooted in a series of land transactions that commenced over a quarter of a century ago. According to the Plaint dated 3 November 2014, the Subject entered into a multiplicity of Agreements for Sale with the late TOK and his sons: JPM, DKT, and MOM. These agreements pertained to the purchase of various acreages excised from a parent title, Kajiado/Loodariak/1095, which was subsequently subdivided into parcels 1560, 1561, and 1562. 5. The prosecution of this suit demands a plaintiff who can meticulously recall dates, parse through dozens of historical payment receipts, withstand aggressive adversarial cross-examination regarding contractual intentions formulated in the year 2000, and provide continuous, coherent instructions to legal counsel. 6. The Subject instituted the suit in 2014 seeking specific performance, alleging that despite the payment of all agreed purchase monies, the Defendants unlawfully declined to surrender the original title deed to facilitate the transfers. The litigation has been fiercely contested. The record shows that the plaint was amended in August 2021 and further amended in October 2023, reflecting ongoing procedural battles regarding the alleged illegal subdivision and transfer of the suit properties to third parties. 7. For over a decade, the Subject valiantly managed this arduous litigation. However, the relentless passage of time, compounded by severe cardiovascular trauma, has fundamentally altered his cognitive architecture. In October 2023, recognizing the Subject's failing memory, an application was made in the ELC to introduce the present Applicant as an additional witness. 8. The ELC matter is scheduled for its next substantive hearing on 16 July 2026. It is against this backdrop of imminent, highly complex litigation that the medical and testimonial evidence regarding the Subject's mental capacity must be evaluated. 9. The Applicant has placed before this Court a triad of evidence: the clinical findings of the attending medical practitioner, the corroborating testimony of the family, and the administrative authentication of the local government authority. 10. The Subject is presently 83 years old. In 2011, the Subject suffered a catastrophic hemorrhagic stroke that necessitated an invasive cranial surgery (craniotomy). While he physically survived the ordeal, the neurological damage has manifested as a progressive, degenerative cognitive impairment. 11. The Applicant relied on the medical expertise of Dr. Michael Musembi, a registered clinical officer at St. Odilia's Dispensary in Karen, who has served as the Subject's primary attending clinician for over a decade. Dr. Musembi authored a detailed Medical Report dated 16 February 2026, which chronicles the Subject's long-standing history of hypertension and post-surgical sequelae, concluding that the Subject has developed partial memory loss, marked forgetfulness, and episodic irritability. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5655/eng@2026-04-30 2

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12. The Applicant, a 12-year aviation captain and businessman, testified that he has been intimately involved in managing his father's company and assisting with the Kajiado litigation since returning to Kenya in 2015. The Applicant detailed the practical, daily manifestations of his father's cognitive decline. He testified that the Subject frequently wanders off, causing the family profound anxiety that he cannot navigate his way back home. The Applicant further noted the Subject's erratic mood swings and a concerning, stubborn insistence on driving himself, an activity that has become inherently dangerous given his neurological deficits. The Applicant confirmed that he seeks powers strictly limited to the Kajiado land case, emphasizing that the opposing parties in the ELC suit took advantage of his father's deteriorating condition to evade their contractual obligations. 13. The Applicant's testimony is reinforced by formal administrative documentation. Pursuant to the Court's directions, the Applicant produced a letter dated 17 March 2026, authored by Mr. George Rogers Nyachiro, the Assistant Chief of Lenana Sub-Location, Karen. The letter, issued under the official seal of the Ministry of Interior and National Administration, confirms that the Subject is a resident of Rhino Park, Karen, is currently unwell and unable to attend court proceedings, and that the family has collectively authorized the Applicant, his biological son, to represent the Subject's interests in the ongoing litigation. 14. The Subject, BPM, was presented before this Court on 18 March 2026. The Court engaged the Subject in dialogue to assess his orientation to time, place, and person, as well as his comprehension of the adversarial proceedings. 15. The Subject presented as a dignified gentleman, yet his testimony laid bare a profound state of cognitive fragmentation. While he retained a foundational awareness of his identity and a deep, enduring affection for his family, his grasp of factual reality was severely compromised. 16. The Court's observation of the Subject aligns seamlessly with the clinical diagnosis of partial dementia resulting from cerebrovascular trauma. He was unable to recall the current month or the number of his children. His spontaneous references to his past career as an active pilot, presented as a current reality demonstrate a temporal displacement that is a hallmark of advanced cognitive decline. 17. The purpose of the judicial inquiry is to ascertain functional capacity for litigation. The Subject is required to protect his interests in a case involving complex land sub-divisions, dozens of historical financial receipts, and the rigors of adversarial cross-examination. Based on the Court's direct interaction, it is patently clear that the Subject lacks the concentration, memory retention, and analytical processing required to comprehend the nuances of the ELC suit, let alone give coherent, binding instructions to his Advocates. The erosion of his memory has fundamentally compromised his ability to participate in the justice system. Analysis & Determination 18. The definitive standard for assessing mental incapacity in Kenya was comprehensively articulated by the Supreme Court in Petition No. 10 (E013) of 2022 - Hon. Lady Justice Mary Muthoni Gitumbi vs. Tribunal Appointed to Investigate, in which the Supreme Court established universal, binding guidelines applicable to all courts making determinations of legal capacity under the Mental Health Act. The Gitumbi test comprises two mandatory stages: (i) There must be empirical medical proof that the person has an illness or injury that affects the manner in which the brain or mind works; and (ii) It must be established that the illness or injury affects the person to the extent that they are unable to perform specific functions or make specific decisions to the requisite standard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5655/eng@2026-04-30 3

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19. The Supreme Court further defined the functional threshold, holding that mental incapacity includes, but is not limited to, a person's inability to make a decision, understand information about a decision, remember information, use or weigh the information to make a decision, or communicate a decision. 20. Applying the Gitumbi functional criteria to the evidence before this Court yields an unequivocal result. The judicial inquiry revealed that the Subject is temporally and spatially disoriented. He cannot grasp the current status of the 12-year-old ELC litigation or comprehend the complexities of the land subdivisions he previously initiated. The Subject suffers from medically confirmed partial memory loss resulting from a 2011 craniotomy. He cannot recall basic historical facts required for his testimony, failing even to remember the current month or the number of his children. The Subject lacks the cognitive endurance to process complex legal advice, weigh litigation risks, or handle cross-examination regarding financial receipts dating back to the year 2000. The Applicant's uncontroverted testimony that the Subject wanders off and exhibits erratic mood swings further impedes any sustained analytical thought. 21. The convergence of the clinical evidence (Dr. Musembi's diagnosis of post-stroke partial dementia and a 5/10 cognitive score) and the functional legal evidence fulfills both prongs of the Gitumbi test. The Subject is, within the meaning of section 26 of the Mental Health Act and Order 32 Rule 15 of the Civil Procedure Rules, incapable of managing his affairs and protecting his interests in the pending litigation. 22. Having established that the Subject requires protective judicial intervention, the Court must determine whether the Applicant is a fit and proper person to be appointed as Guardian ad litem and Manager. 23. Section 26 of the Mental Health Act explicitly states that the Court may appoint a ‘near relative or any other suitable person’, giving statutory preference to familial bonds in the management of incapacitated persons. In assessing the suitability of a proposed manager, the Court is guided by the principles elucidated in In re AA (Miscellaneous Application E047 of 2024) KEHC 1175, which require the Court to be satisfied that the proposed manager is fit to be appointed and will utilize their powers strictly for the benefit and welfare of the subject. 24. The Applicant is the biological son of the Subject. The evidence demonstrates a long-standing, intimate involvement in his father's care and business affairs since 2015. The Applicant possesses intricate, firsthand knowledge of the Kajiado land dispute, having already been admitted as a corroborating witness by the ELC. Furthermore, his application is actively supported by the wider family, as verified by the local administrative Chief. 25. Crucially, there is absolutely no evidence on record of intra-familial conflict, financial impropriety, or adverse interests that would disqualify the Applicant. This is a critical consideration. Under Order 32 Rule 4(1) of the Civil Procedure Rules, a person cannot act as a Next Friend or Guardian if their interests are adverse to those of the person of unsound mind. In the recent case of In re AAR, the Court highlighted this exact principle, noting the glaring conflict of interest in allowing a spouse to manage the estate of a ward while simultaneously litigating a bitter divorce against that same ward. No such conflict exists here; the Applicant and the Subject share a unified interest in the successful prosecution of the ELC suit against third-party defendants. 26. A highly commendable aspect of this Application is its precise, circumscribed scope. The Applicant does not seek plenary control over the Subject's personal autonomy, daily life decisions, or the entirety of his financial estate. The prayers are strictly limited to the prosecution and management of a single, specified legal proceeding: Kajiado ELC Case No. 70 of 2018. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5655/eng@2026-04-30 4

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27. Accordingly, the Notice of Motion dated 16 February 2026 is found to be merited. The Court issues the following orders: i. It is hereby adjudged and declared that the Subject is a person suffering from a mental disorder within the meaning of section 26 of the Mental Health Act. He is presently incapable of adequately protecting his interests and prosecuting his claims in Environment and Land Court Case No. 70 of 2018 (formerly Nairobi ELC No. 1421 of 2014) at Kajiado. ii. The Applicant is hereby appointed as the Guardian ad litem, Next Friend, and Manager of the Estate of BPM for the strictly limited and specified purpose of conducting, prosecuting, defending, instructing counsel in, and otherwise managing all aspects of Kajiado Environment and Land Court Case No. 70 of 2018 (BPM vs. Estate of TOK & 3 Others). iii. The costs of this Application shall be in the cause. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF APRIL 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For the Applicant: Ms Kinyua Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5655/eng@2026-04-30 5

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