Michael Moragia Nyachae (suing As Attorney For and On Behalf of Martha Mwango Nyachae) v Grace Wamuyu Nyachae & 4 others

RULING 1. This oral application arose during the cross-examination of Pw2, when Senior Counsel Philip Murgor raised a fundamental objection to the Plaintiff's legal capacity to institute and sustain these proceedings. The gravamen of the objection is that Martha Mwango Nyachae, the Donor of the Power of Attorney dated 3rd May 2021, under which the Plaintiff derives his authority to sue, is allegedly suffering from a mental infirmity, specifically dementia, thereby rendering the Power of Attorney and any subsequent legal action founded upon it a nullity. Counsel urged the Court to strike out the suit. 2. Mr. Imende, Counsel for the 3rd Defendant, supported the objection and urged the Court to conduct an inquiry under Order 32 Rule 15 of the Civil Procedure Rules, 2010. He grounded his argument on a medical report dated 11th June 2025, which, in his view, establishes that the Donor lacked the mental capacity to execute the Power of Attorney or to authorize the present proceedings. 3. Dr. Kenyariri, Counsel for the Plaintiff, vehemently opposed the application. He submitted that the challenge was merely a delaying tactic and an attempt to collude to interfere with the court proceedings. He argued that the medical report dated 11th June 2025 does not establish mental incapacity and that the burden of proof lies with the party alleging incapacity. He further contended that the Power of Attorney was prepared three years before the suit was instituted and that this is a commercial dispute concerning company shares, not a succession matter. Analysis and determination 4. I have considered the rival submissions and the record before the Court. The issue for determination is whether the Court should strike out the suit or suspend the proceedings pending the appointment of a guardian on account of the alleged mental incapacity of Martha Mwango Nyachae. 5. The burden of proving the alleged mental infirmity rests squarely on the party alleging it, as per the general rule under Section 107 of the Evidence Act. The party challenging the capacity must present cogent and credible evidence to persuade the Court that a formal inquiry is necessary. However, this burden shifts in material respects where the party alleging capacity places evidence before the Court and then declines to submit it to scrutiny. 6. The jurisdiction of this court to inquire into the mental capacity of a party or a person whose interests are represented in proceedings is found in Order 32 Rule 15 of the Civil Procedure Rules, which provides: “ 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.” 7. This Court's power to conduct such an inquiry is discretionary but must be exercised judiciously. The Court must form an opinion based on a proper judicial inquiry that the person is incapable of protecting their own interests. The inquiry is not a mere formality but a substantive judicial exercise that must be undertaken with utmost circumspection. (See Ethics & Anti-Corruption Commission v Koech & another [2024] KEHC 1146 (KLR). 8. I have carefully examined the medical report dated 11th June 2025, which the Plaintiff itself placed on record. Notably, both parties rely on this singular report, the Plaintiff to assert capacity, and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9704/eng@2026-06-30 2

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Defendants to challenge it. The Defendants have properly drawn the Court's attention to the Plaintiff's indication that it will not call Martha Mwango Nyachae, the doctor who prepared the report, nor the counsel who commissioned the affidavit, to testify. This raises a legitimate evidentiary concern. 9. Having placed the medical report before the Court, the Plaintiff cannot now be heard to argue that the same report does not establish incapacity while simultaneously denying the Court the opportunity to interrogate its contents through cross-examination of its author. 10. The Defendants raise a jurisdiction question on the legal capacity of the Plaintiff and her interest in the suit before the court. This is not a matter that can be summarily dismissed as a delay tactic. It goes to the very root of the court's jurisdiction. 11. The diagnosis of dementia in the medical report dated 11th June 2025 is not a mere allegation, rather it is a medical finding by a qualified professional. While the Plaintiff argues that the report does not establish incapacity, the Defendants have raised a credible challenge based on the very document the Plaintiff relies upon. 12. It is trite law that a diagnosis of a mental health condition does not ipso facto equate to legal incapacity. However, where a medical report confirms a condition such as dementia, the Court has a duty to make further inquiry before proceeding with the trial. 13. Given the gravity of the issue raised, this Court is of the firm view that a judicial inquiry under Order 32 Rule 15 is not only justified but is necessary. To proceed with the trial without ascertaining the Donor's capacity would be to potentially disregard the core legal principle that a suit can only be brought by a person who has legal capacity or by a properly appointed representative of a person who lacks such capacity. 14. This Court has the inherent power and the duty to satisfy itself that the person on whose behalf the suit is brought has the capacity to do so. The Court is not, at this stage, making a finding of incapacity. The Court is merely exercising its duty to ensure that the proceedings before it are properly founded. 15. For the avoidance of doubt, this Court shall determine the application made by Dr. Kenyariri, Counsel for the Plaintiff, for the enforcement of paragraph 5 of the orders of 20th April 2023, only after it has first satisfied itself on the threshold question of whether the Plaintiff has the legal capacity to protect her interests in this suit. 16. For the foregoing reasons, I find that the application by the Defendants has merit and accordingly make the following orders: i. The Plaintiff's opposition to the application is hereby overruled. ii. The Court hereby orders that a judicial inquiry be conducted pursuant to Order 32 Rule 15 of the Civil Procedure Rules, 2010, to determine the mental capacity of Martha Mwango Nyachae. iii. The said inquiry shall be conducted on 16th July 2026. iv. Martha Mwango Nyachae shall be produced before the Court for this inquiry. v. All proceedings in the main suit, including the determination of the Plaintiff's application for enforcement of paragraph 5 of the orders of 20th April 2023, are hereby stayed pending the outcome of this inquiry. vi. Costs of this application shall be in the cause. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9704/eng@2026-06-30 3

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Orders accordingly. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JUNE 2026. PETER MULWA JUDGE In the presence of: Dr. Kenyariri for Plaintiff Mr. Philip Murgor, SC & Mr. Ouma for 1st & 2nd Defendant Mr. Imende & Mr. Angwenyi for 3rd Defendant Court Assistant: Lispa https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9704/eng@2026-06-30 4

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