https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11071

L alias LCR v Nyaanga (Civil Miscellaneous Application E105 of 2026) [2026] KEHC 11071 (KLR) (21 July 2026) (Ruling) Neutral citation: [2026] KEHC 11071 (KLR) Republic of Kenya In the High Court at Eldoret Civil Miscellaneous Application E105 of 2026 JM Chigiti, J July 21, 2026 Between L alias LCR Applicant and Julia Bosibori Nyaanga Respondent Ruling 1.Before this Court is the Notice of Motion dated 4th April,2026 filed by the Applicant, who is the daughter of the proposed subject, seeking orders that she be appointed as the legal guardian of her father on account of his alleged mental incapacity arising from old age dementia. 2.The application is expressed to be brought under Sections 3 and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and the provisions of the Persons with Disabilities Act. The Applicant contends that the proposed subject suffers from dementia and is therefore unable to adequately manage his personal, legal and proprietary affairs. 3.In addition to the prayer for appointment as guardian, the Applicant sought interim orders preserving the position obtaining in respect of the subject parcel of land, particularly regarding its use, occupation and entries at the Lands Registry, pending hearing and determination of the application. 4.Upon the application being placed before the Court under certificate of urgency, the Court directed that the status quo obtaining in respect of the use, occupation and entries at the Lands Registry relating to the subject parcel of land be maintained pending hearing and determination of the application. 5.The purpose of the present ruling is therefore two-fold. First, the Court is required to determine whether the Applicant has established a basis for appointment as the legal guardian of the proposed subject. Secondly, having heard the parties on the substantive application, the Court must determine whether the interim status quo orders previously issued ought to be confirmed, varied or discharged. 6.The Court is alive to the competing considerations arising in this matter. On one hand is the obligation to protect a person who is alleged to be suffering from mental incapacity and to ensure that his dignity and interests are safeguarded. On the other hand is the equally important principle that court orders and decrees issued by competent courts must be respected and that concluded litigation must attain finality. 7.The Court shall therefore approach the matter by separately considering the issue of guardianship and the effect of the interim status quo orders on the existing judgment and decree concerning the disputed parcel of land. Background; 8.The background giving rise to this application is a dispute relating to a parcel of land between the proposed subject and the Respondent. 9.It is the Respondent’s case that in the year 2023, the proposed subject entered into a sale agreement with her whereby he sold to her a portion of his land measuring approximately 0.4 points of an acre. The Respondent states that she paid the agreed purchase price in full and that following subdivision, she took possession of her portion, fenced the same and commenced construction of her residential premises. 10.The Respondent alleges that the proposed subject thereafter interfered with her possession by trespassing onto the property and demolishing the structures she had commenced constructing. As a result, the Respondent instituted proceedings against the proposed subject seeking, among other reliefs, vacant possession, permanent injunctive orders and an order compelling execution of the necessary documents to facilitate transfer of the purchased portion. 11.Upon filing of the suit, summons to enter appearance were issued and served upon the proposed subject. The record indicates that he failed to enter appearance or file a defence within the prescribed period despite service. The matter consequently proceeded by way of formal proof. 12.Judgment was thereafter delivered on 25th February,2025 in favour of the Respondent and a decree being issued on 3rd April, 2025. The trial court ordered the proposed subject to vacate and hand over the portion measuring approximately 0.4 points of an acre within fourteen days. The court further issued a permanent injunction restraining him, his agents and servants from entering upon, constructing on, fencing, selling, alienating or interfering with the Respondent’s portion of land. The proposed subject was also directed to execute the necessary consents and transfer documents in favour of the Respondent. 13.Following the judgment, the proposed subject filed an application dated 6th May 2025 seeking, among other orders, setting aside of the interlocutory judgment and leave to defend the suit out of time. The application was opposed by the Respondent. 14.Upon considering the application, the trial court found that service of summons had been properly effected and that the judgment was therefore a regular judgment. The court further considered the draft defence annexed to the application and found that it consisted largely of mere denials and did not disclose any triable issues. The application was consequently dismissed. 15.Subsequently, the proposed subject, through a different advocate, filed another application dated 13th November 2025 seeking leave for the new advocate to come on record, substitution of the proposed subject with the present Applicant on account of alleged dementia, and setting aside of the judgment to enable filing of a fresh defence. 16.The trial court delivered its ruling on 25th February 2026. It allowed the prayer for change of advocates but declined the prayer seeking to set aside the judgment, holding that the issue had already been determined and was therefore res judicata. The court observed that the proposed subject was at liberty to pursue an appeal against the earlier ruling if aggrieved. The Present Application; 17.It is against that background that the present application has been filed. The Applicant states that her father has since been diagnosed with old age dementia and is incapable of properly managing his affairs. She relies on a medical report, a letter from the area Chief confirming the family’s decision that she should act as guardian, and an identification report from the National Registration Bureau indicating that the thumbprint appearing on an affidavit filed in earlier proceedings did not belong to the proposed subject. 18.The Applicant contends that unless she is appointed as guardian, her father risks suffering prejudice in the ongoing legal dispute concerning the land. Response by the Respondent; 19.The application is opposed by the Respondent. She contends that although the Applicant presents the application as one for guardianship, its real purpose is to reopen and delay execution of a judgment that has already been entered in her favour. 20.The Respondent argues that the proposed subject has already unsuccessfully challenged the judgment through an application to set aside the ex parte proceedings and through a subsequent application which was dismissed on the basis of res judicata. 21.The Respondent maintains that the present application is therefore an abuse of the court process and that the prayer seeking maintenance of the status quo over the suit property is, in substance, an attempt to obtain a stay of execution without satisfying the requirements for such relief. The Applicant's Submissions; 22.Learned counsel for the Applicant submitted that the proposed subject is a person suffering from a mental disability arising from old age dementia, as evidenced by the medical report annexed to the application. Counsel argued that once the Court is satisfied that a person is incapable of managing his affairs by reason of mental incapacity, it is under a legal and constitutional obligation to ensure that such a vulnerable person receives appropriate protection. 23.On the jurisdiction of this Court, counsel submitted that Articles 23 and 165 of the Constitution confer upon the High Court broad jurisdiction to enforce and protect constitutional rights and to grant appropriate relief where circumstances so require. It was argued that the Court's protective jurisdiction is further grounded in the common law doctrine of parenspatriae, under which the Court assumes the role of protector of persons who are unable, by reason of mental incapacity, to safeguard their own interests. 24.In support of that proposition, counsel relied on Re MM [2015] eKLR and Re BKM [2022] eKLR, where the High Court affirmed its protective jurisdiction to appoint guardians or managers for persons incapable of managing their own affairs. 25.On the suitability of the Applicant, counsel submitted that she is the biological daughter of the proposed subject, is an adult of sound mind, has been actively involved in her father's care and welfare, and enjoys the support of the other members of the family, all of whom have consented to her appointment as guardian. 26.Counsel further submitted that the appointment sought would facilitate effective access to justice for the proposed subject and ensure that his constitutional rights are adequately protected, particularly the rights guaranteed under Articles 48 and 50 of the Constitution. 27.In support of the Applicant's suitability for appointment as guardian, counsel relied on Re MNM [2018] eKLR, urging the Court to appoint a close family member where such appointment is shown to be in the best interests of the person requiring protection. 28.On the prayer relating to the interim status quo orders, learned counsel for the Applicant submitted that the disputed parcel of land remains the subject of active litigation and that there exist serious questions concerning the authenticity of documents and pleadings allegedly executed by the proposed subject in the previous proceedings. 29.Counsel argued that the identification report from the National Registration Bureau, indicating that the thumbprint appearing on the supporting affidavit filed in the earlier proceedings did not belong to the proposed subject, raises substantial questions which ought to be preserved for determination through the appropriate legal process. 30.It was further submitted that unless the prevailing status quo is maintained, there exists a real risk of alienation, transfer, disposal or other interference with the suit property, thereby rendering any future legal proceedings that may be undertaken on behalf of the proposed subject nugatory. 31.Counsel urged the Court to exercise its inherent jurisdiction to preserve the subject matter pending any further legal steps that may be taken by the duly appointed guardian and relied on the principles governing preservatory relief as enunciated in Giella v Cassman Brown & Co. Ltd [1973] EA 358. The Respondent's Submissions; 32.Learned counsel for the Respondent relied on the replying affidavit sworn in opposition to the application and reiterated the matters deponed therein. 33.Counsel submitted that, although the application is presented as one for appointment of a legal guardian, it is in substance an attempt to reopen and frustrate the implementation of a judgment that has already been rendered by a court of competent jurisdiction. It was argued that the issues relating to the suit property have previously been litigated and determined and that, to that extent, the present application offends the doctrine of res judicata. 34.Counsel further submitted that the proposed subject actively participated in the transaction giving rise to the dispute and that one of his daughters was a witness to the sale agreement executed between the parties. It was additionally contended that the same daughter facilitated payment of legal fees to the advocate who previously acted for the proposed subject in the proceedings before the trial court, demonstrating the family's awareness of and participation in those proceedings. 35.The Respondent maintained that the present application is an afterthought, brought in bad faith and intended to delay and obstruct the Respondent from enjoying the fruits of a lawful judgment. 36.Counsel further submitted that the Court ought not to countenance attempts to abuse its process or permit litigation to be prolonged through successive applications raising matters that have either been determined or ought to have been raised in the earlier proceedings. 37.45. In the circumstances, counsel urged the Court to find that the application lacks merit, to discharge the interim status quo orders previously issued, and to dismiss the application with costs. Issues for Determination 38.Having considered the pleadings, affidavits, annexures and submissions by the parties, the following issues arise for determination:a.Whether the applicant has established sufficient grounds for the grant of guardianship orders.b.Whether this Court has jurisdiction and a legal basis to grant an order maintaining the status quo over the disputed land in the circumstances of this matter.c.What orders should issue in the circumstances of the application. Analysis and Determination; a. Whether the applicant has established sufficient grounds for the grant of guardianship orders. 39.The jurisdiction of this Court to appoint a guardian is exercised to protect the welfare, dignity and property of a person who, by reason of mental incapacity or other legally recognized disability, is unable to manage his or her personal affairs or estate. The guiding consideration is not the competing interests of family members, but the best interests and welfare of the subject person. The Court must therefore be satisfied, on the material placed before it, that the appointment sought is both necessary and beneficial to the person in respect of whom the orders are sought. 40.The first issue for determination concerns whether the evidence placed before this Court sufficiently demonstrates that the proposed subject lacks the capacity to manage his affairs and whether, consequently, the Applicant should be appointed as his legal guardian. 41.The starting point is that every person is presumed to have capacity to make decisions concerning his or her affairs unless the contrary is demonstrated through credible evidence. The appointment of a guardian is therefore not a routine order to be made merely because a person is elderly or involved in litigation. It is a protective measure that is invoked where the evidence establishes that the person concerned, due to mental or cognitive impairment, is unable to properly understand, make or communicate decisions affecting his affairs. 42.The Constitution of Kenya provides the broader framework within which such protective jurisdiction must be exercised. Article 28 guarantees every person the right to dignity and requires that the inherent dignity of every individual be respected and protected. Article 54 specifically recognizes the rights of persons with disabilities and requires that appropriate measures be taken to ensure their protection and participation in society. Article 57 further requires the State to take measures to ensure the welfare and protection of older persons. 43.The Court therefore approaches applications of this nature with the understanding that the law does not seek to remove autonomy from a person merely because of age or illness. Rather, the objective is to provide necessary assistance and protection where a person has become unable to safeguard his own interests. 44.The statutory framework relating to persons with disabilities equally recognizes the obligation to protect persons whose disability affects their ability to participate effectively in decision-making processes. The Court must therefore exercise its jurisdiction in a manner that promotes dignity, autonomy and protection of the person concerned. 45.The High Court has, in appropriate cases, exercised its protective jurisdiction by appointing guardians or managers where medical evidence demonstrates that a person has lost the ability to manage his affairs. 46.In In Re WWK (Person of Unsound Mind) [2017] eKLR, the High Court considered an application for appointment of a guardian and manager where the subject suffered from dementia. The Court held that appointment of a guardian must be founded on sufficient evidence, particularly medical evidence demonstrating that the subject was incapable of managing his affairs. 47.Similarly, in In Re HWN [2017] eKLR, the Court observed that the relevant consideration is whether the condition of the subject is such that he is unable to manage his affairs, thereby requiring the intervention of the Court for his protection. 48.In Re RWG [2021] eKLR, the High Court appointed a family member as guardian after being satisfied, from medical evidence, that the subject was suffering from senile dementia and was unable to adequately attend to her affairs. The Court emphasized that the appointment of a guardian is intended to protect the interests and welfare of the person affected. 49.The common principle emerging from these decisions is that the Court must be satisfied, based on credible evidence, that the proposed subject suffers from a condition that substantially impairs his ability to make decisions or manage his affairs. Old age alone is insufficient. However, where old age is accompanied by a medical condition such as dementia that affects cognition and decision-making ability, the Court may intervene. 50.Turning to the present application, the Applicant has annexed a medical report indicating that the proposed subject has been diagnosed with old age dementia. The report attributes to him cognitive impairment affecting his ability to make independent decisions and manage his affairs. 51.The Respondent has not placed before this Court any contrary medical evidence challenging the diagnosis or suggesting that the proposed subject retains full cognitive ability to manage his personal and legal affairs. The medical evidence before Court therefore remains uncontroverted. 52.The Applicant has further annexed a letter from the area Chief confirming that members of the family met and agreed that she should act as her father's guardian. While such a letter is not, by itself, proof of incapacity, it is relevant evidence demonstrating that the proposed subject's immediate family considers intervention necessary and has identified a suitable person to assist him. The Court has equally considered whether the applicant is a suitable person to be entrusted with the responsibilities of guardianship. 53.Nothing has been placed before the Court to suggest that the applicant is unsuitable, has acted in bad faith, or has interests adverse to those of the subject that would render the appointment inappropriate. On the contrary, the material before the Court demonstrates that the application has been brought with the intention of ensuring that the subject's welfare and affairs are properly safeguarded. 54.The question presently before this Court is whether the proposed subject, based on his current medical condition, requires the appointment of a guardian to protect his interests. 55.Having considered the medical report, the absence of contrary evidence, and the surrounding circumstances, this Court is satisfied, on a balance of probabilities, that the proposed subject suffers from dementia which substantially affects his ability to manage his personal and legal affairs. 56.The Court is equally satisfied that the Applicant, being his daughter and having the support of the family, is a suitable person to undertake that role. 57.Accordingly, the Court finds that the Applicant has established a proper basis for appointment as the legal guardian of the proposed subject. 58.The appointment of a guardian is a protective order directed at safeguarding the welfare and interests of the person suffering incapacity. It is not, without more, a declaration that the person lacked capacity at every earlier point in time. 59.In the present case, the Court has not been invited, and does not determine, whether the proposed subject lacked capacity when he entered into the sale agreement in 2023, when the proceedings were commenced, when summons were served, or when judgment was entered. 60.Those questions would require separate proceedings and appropriate evidence. The finding made herein is limited to the present incapacity as demonstrated before this Court and the need to provide assistance and protection into his future. 61.I am therefore satisfied from the evidence before the Court that there is justification for judicial intervention in this case. It is in the best interests of the subject that a guardian be appointed to oversee his personal welfare and to manage his affairs in accordance with the law and I so hold. (b) Whether the interim status quo orders issued on the application being certified urgent ought to be confirmed or discharged 62.Upon considering the application at the interlocutory stage, the Court directed that the status quo obtaining in respect of the use, occupation and entries at the Lands Registry relating to the subject parcel of land be maintained pending the hearing and determination of the application. 63.The purpose of an interim status quo order is to preserve the subject matter of proceedings pending hearing of the parties and determination of the issues raised before the Court. Such an order is not a determination of the rights of the parties and does not confer any proprietary or possessory rights upon either party. It is intended to prevent actions that may render the eventual determination of the Court nugatory. 64.The fact that the Court granted the interim order at the interlocutory stage does not, however, mean that the order must automatically be confirmed after hearing the parties. The Court is required, upon considering the evidence and submissions of the parties, to determine whether the circumstances justify continuation of the order. 65.The Court has already made a finding that the Applicant has established a basis for appointment as the legal guardian of the proposed subject on account of his present medical condition. That finding, however, must be considered separately from the nature and effect of the status quo orders sought. 66.The subject matter over which status quo was ordered is not an ordinary asset whose preservation is being sought pending determination of ownership. 67.The property was the subject of previous litigation between the proposed subject and the Respondent, which litigation has already proceeded to judgment. 68.The Respondent obtained judgment on 25th February, 2025 granting her, among other reliefs, vacant possession of the portion of land purchased by her, a permanent injunction restraining interference with her occupation and use of the property, and an order requiring execution of the necessary transfer documents. 69.The Court is therefore dealing with a unique situation where the rights of the parties over the disputed parcel of land have already been determined by a competent court. The status quo order was not issued pending determination of the original land dispute but pending determination of this guardianship application. 70.The Court must therefore be cautious to ensure that an interim preservation order does not have the unintended effect of setting aside, suspending or defeating the operation of a decree that remains valid and enforceable. 71.The jurisdiction of this Court in the present proceedings is limited to determining whether the proposed subject requires legal protection by reason of incapacity and whether a suitable guardian should be appointed. That jurisdiction does not extend to reopening concluded land proceedings or granting relief that effectively determines rights relating to occupation, possession or title to land. 72.Article 162(2)(b) of the Constitution establishes the Environment and Land Court as the court with jurisdiction to determine disputes relating to the environment and the use and occupation of, and title to, land. Article 165(5)(b) of the Constitution expressly excludes the High Court from exercising jurisdiction over matters reserved for courts established under Article 162(2). 73.Section 13 of the Environment and Land Court Act further provides that the Environment and Land Court has jurisdiction over disputes relating to title, tenure, boundaries, ownership, possession, occupation and other interests in land. 74.In Republic v Karisa Chengo & 2 Others [2017] eKLR, the Supreme Court emphasized that courts established under Article 162(2) of the Constitution and the High Court have separate and distinct jurisdictional mandates and must operate within those constitutional boundaries. 75.The Court is alive to the fact that the present application is not seeking the determination of ownership or cancellation of any interest in land.The issue is whether the interim order previously granted should remain in force. 76.The Court has considered whether continuation of the interim orders is necessary merely to preserve the proposed subject's interests pending any future legal action that the guardian may consider appropriate. 77.In the circumstances of this case, continuation of the interim orders would inevitably impede the Respondent's enjoyment of a valid decree and would effectively suspend its execution without any appeal, review or stay having been granted by the court that issued it or by an appellate court.Such an outcome would exceed the proper scope of the present guardianship proceedings. 78.Having considered the nature of the relief sought, the Court finds that maintaining the status quo orders would, in practical effect, preserve a position inconsistent with the existing decree. 79.In particular, the order would restrict the Respondent from enjoying the fruits of a judgment already obtained and would have the effect of delaying enforcement of orders issued in her favour. 80.The Court further notes that the proposed subject had previously invoked the appropriate procedure for challenging the judgment by filing an application seeking setting aside of the ex parte judgment and leave to defend the suit out of time. 81.The trial court considered that application and found that service had been properly effected and that the judgment was regular. The court further found that the proposed defence did not disclose triable issues and dismissed the application. 82.The principles governing setting aside of regular judgments were set out in Shah v Mbogo & Another [1967] EA 116, where the Court held that the discretion to set aside judgment is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice. 83.Similarly, in Patel v East Africa Cargo Handling Services Ltd [1974] EA 75, the Court emphasized that while the court has discretion to set aside judgment in appropriate cases, the party seeking such relief must demonstrate a sufficient basis upon which the matter should be reopened. 84.In the present matter, those principles were considered by the trial court. This Court is not sitting on appeal over those findings. 85.The Court also notes that a subsequent application seeking to reopen the judgment was declined on the basis that the issue had already been determined. The doctrine of res judicata is founded on the principle that disputes must at some point come to an end. 86.Section 7 of the Civil Procedure Act prohibits a court from trying an issue that has already been directly and substantially determined between the same parties by a competent court. 87.In Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Supreme Court held that the doctrine of res judicata serves the purpose of ensuring finality of litigation and preventing abuse of the court process through repeated attempts to litigate matters that have already been determined. 88.In the circumstances of this case, the Court finds that although the Applicant has demonstrated a genuine need to protect the proposed subject through appointment of a guardian, the continuation of the status quo orders would have the practical effect of granting relief that is not available within the present proceedings. 89.The Court is therefore unable to confirm or extend the interim status quo orders previously issued. 90.The Court appreciates counsel's submission that preservation is necessary to enable the newly appointed guardian to consider and, if so advised, institute appropriate legal proceedings. However, preservation orders cannot be granted in a manner that effectively suspends the operation of a valid decree of a competent court. The appointment of a guardian does not, by itself, invalidate previous proceedings or automatically entitle the guardian to interim relief affecting rights already adjudicated. Should the guardian elect to pursue any remedy recognized by law, it will be open to the court seized of such proceedings to consider any interlocutory relief sought within the applicable legal framework. 91.Accordingly, the Court finds that the interim orders served their purpose of preserving the position pending determination of the present application. 92.Having now determined the substantive application, and there being no legal basis for their continuation, the interim status quo orders issued on 8th May,2026 are hereby discharged. Final Determination; 93.The Applicant has partially succeeded in the present application. Orders:a.The Notice of Motion dated 4th May,2026 is allowed to the extent that the Applicant is hereby appointed as the legal guardian of her father, the proposed subject, for purposes of assisting him and safeguarding his interests in accordance with the law.b.The interim status quo orders issued by this Court upon the application being certified urgent on 8th May,2026 relating to the Prayer Number 3 are hereby discharged.c.For avoidance of doubt, the appointment of the Applicant as guardian shall not operate as a stay, review, variation, setting aside or suspension of the judgment, decree or orders previously issued by the trial court.d.Each party shall bear their own costs.It is so ordered. DELIVERED, DATED AND SIGNED ON THIS 21ST DAY OF JULY, 2026 AT ELDORET HIGH COURT………………………………J. M. CHIGITI (SC)JUDGE