https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12207

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E186 OF 2026** **BETWEEN** **ANN K. KUBAI (suing for and on behalf of minors Maina Ngatia &** **Kubai Mugambi as the mother and next friend ………………………......PETITIONER** **AND** **THOMAS NG’ANG’A NGATI MUNENE AKA NGANGA MUNENE NGATI AKA THOMAS NGATI NGANGA MUNENE ………..........1ST RESPONDENT** **LYNN MUTHONI NGANGA ………………………………2ND RESPONDENT** **MUNENE NGANGA NGATI………………………………..3RD RESPONDENT** **RULING** **BACKGROUND** 1. This court is asked to determine the 2nd respondent’s application dated 9th July 2026. It is averred that after the filing of the constitutional petition, significant developments emerged regarding the mental status of the 1st Respondent. Reference is made to a Medical Report dated 6 May 2026 that expressly states that “orientation… day, date, month, year, time and place and person were all disordered” and concludes that the 1st Respondent “has significant defects in his cognitive functions… that impair his ability to have independent living and ability to manage his affairs.” The applicant contends that this, coupled with the pending guardianship proceedings in High Court Family Misc. Cause No. E219 of 2026, raise a threshold question as to whether the 1st Respondent possesses the legal capacity to comprehend the nature of these proceedings, instruct counsel, or make decisions affecting his personal and proprietary interests. 2. In view of the foregoing, the Applicant contends that continuation of the petition without first resolving the issue of mental capacity risks occasioning procedural irregularity and prejudice, particularly where the rights and welfare of a vulnerable litigant are implicated. The Applicant therefore seeks urgent intervention through an independent psychiatric assessment and a stay of proceedings. 3. The 1st Respondent in the main Petition who is the subject of the application opposes the application and has sworn an affidavit on 16th July 2026. He avers that he has the mental capacity to participate in the proceedings and to appoint a supporter or guardian of his choice. He avers that the application is not made in his interest. Further he avers that no basis has been laid to stay the proceedings. **SUMMARY OF APPLICANT’S SUBMISSIONS** 1. In urging a stay of proceedings, counsel relies on the principles **in Global Tours & Travels Ltd, HC Winding Up Cause No. 43 of 2000, Kenya Wildlife Service v James Mutembei [2019] eKLR**, and the Supreme Court’s guidance in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR,** submitting that continuation of the Petition without first resolving the question of capacity risks rendering the eventual determination nugatory and exposing the proceedings to procedural unfairness contrary to Article 50(1) of the Constitution. 2. On the prayer for an independent psychiatric assessment, the Applicant submits that the Court is constitutionally and jurisprudentially obligated to satisfy itself on the mental capacity of a litigant where credible doubt exists, drawing on **MMM v AMK [2016] KEHC 4741 (KLR)** and **Balakrishnan v Balachandran**, which affirm that a proper judicial inquiry, supported by expert medical evidence, is indispensable before any determination affecting a person’s legal capacity is made. 3. The Applicant further cites **Patel & Another v MJC & Another [2022] KECA 364 (KLR)** to underscore the Court’s duty to protect the dignity and best interests of persons alleged to lack capacity under Articles 27, 28 and 50. It is therefore urged that an independent psychiatric assessment is a neutral, protective measure that safeguards the integrity of the proceedings, ensures fairness to all parties, and prevents the grave injustice of proceeding against a litigant whose cognitive ability remains in genuine dispute. **SUMMARY OF THE RESPONDENT’S SUBMISSIONS** 1. The respondent faults the application on procedural and substantive grounds. Consistent with the caution in **General & 2 others v Katiba Institute & another; Unit (Interested Party) [2022] KEHC 3333 (KLR**), where the Court emphasised that a stay of proceedings is a “serious, grave and fundamental interruption” only granted in exceptional circumstances and must be exercised sparingly, the respondent submits that the application has no merit. 2. Further the respondent submits that the Application is brought in bad faith, while acknowledging the Cross‑Petitioner’s prior stroke, counsel argues that any inquiry into mental capacity must follow the judicial safeguards under Order 32 Rule 15, as articulated **in MMM v AMK [2016] KEHC 4741 (KLR)** which require a judicial inquiry before the proper forum. **ANALYSIS AND DETERMINATION** 1. Having considered the application, response thereto, the rival submissions and the relevant law, I frame the following as the issues for determination 2. Whether it is in the interests of the minor herein to stay the Proceedings herein? 3. What is the appropriate order regarding costs? 4. The Constitution demands that in all matters concerning children, the primary consideration is the best interests of the child. Article 53(2) of the Constitution of Kenya 2010 provides that:- **“A child’s best interests are of paramount importance in every matter concerning the child”.** 1. Similarly Section 8 (1) of the Children Act 2022 provides:- **“(8). (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—** **(a)the best interests of the child shall be the primary consideration;”** 1. The Petition herein touches on access by children to their father. A DNA Test has been conducted at the preliminary stage confirming paternity. The question that this court is asked to determine is whether it is in the best interests of the child to stay the proceedings herein as the applicant pursues a judicial determination of the mental capacity of the respondent, who has asserted that he has the cognitive presence to understand and present his interest in this matter and if he was mentally infirm he has his preferred supporters. 2. Whilst the jury is out on this issue, the applicant asserts that this Petition in which the minor children seek to have a determination on their right to access a parent should be stayed. 3. In **General, & 2 others v Katiba Institute & another; Unit (Interested Party) [2022] KEHC 3333 (KLR)** stay of proceedings was discussed as hereunder: **27.**[***Halsbury’s Laws of England***](https://www.goodreads.com/book/show/42202515-halsburys-laws-of-england-vol-44)**, 4th Edition, Vol 37 at p 330 says the following about stay of proceedings:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings, beyond reasonable doubt, ought not to be allowed to continue….This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of this case."** **28.In short, a stay of proceedings is a radical remedy which is only granted in very exceptional circumstances. In the words of Ringera J in *Global Tours & Travels Limited* (Nairobi HC Winding Up Cause No 43 of 2000):“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously" (emphasis added)** 1. The prayer for stay of proceedings as stated above can only be granted in exceptional circumstances and certainly not where it is not demonstrated to be in the best interests of the child. Accordingly, the prayer for stay of proceedings is declined. 2. The applicant has a pending application presented under the Mental Health Act; it is that court that can competently pronounce on the mental health status of the respondent. This Court therefore must decline the request to make any declaration that is within the purview of the Mental Health Act. The prayer for mental health assessment of the respondent fails. 3. On costs, in **Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR),** the Supreme Court stated- **Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant** 1. In the circumstances of this matter, it is not lost to the Court that the Applicant is the daughter of the Respondent. In family disputes, courts are enjoined to encourage reconciliation and to avoid orders that may further entrench discord. One of the ways in which this objective is advanced is through the exercise of discretion not to award costs, particularly where the parties share close familial bonds. Accordingly, and in keeping with that long‑standing principle, I consider that the appropriate order in this instance is that each party shall bear their own costs 2. The final orders will therefore be that the entire application fails with no order as to costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI this 30th Day of JULY 2026.** **P. M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Kiarie Mungai for Petitioner Ondago holding brief Kimathi for 3rd Respondent Kilonzo holding brief & Omari for 2nd Respondent/Applicant Odhiambo for 1st Respondent