https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8523

In re Estate of Kapkom alias Paulo Saisi Kapkom - Deceased (Succession Cause E010 of 2022) [2026] KEHC 8523 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 8523 (KLR) Republic of Kenya In the High Court at Kapenguria Succession Cause E010 of 2022 RPV Wendoh, J June 17, 2026 IN THE MATTER OF THE ESTATE OF PAULO KAPKOM alias PAULO SAISI KAPKOM – DECEASED Between JCK Petitioner and Ezekiel Mwetich Objector and Lonah Chepkoskei Saisi Applicant Ruling 1.By the notice of motion dated 23/3/2026, the applicant, Lonah Chepkoskei Saisi seeks an order that she be granted leave to act as the next friend and or guardian on behalf of JCK, the petitioner herein, who due to her mental infirmity and indisposition is unable to petition and respond as the legal administrator of the Estate of Paulo Saisi Kapkom (the deceased). 2.The application is supported by grounds found in the body of the application and an affidavit sworn by the applicant on 23/3/2021. 3.The applicant avers that she is the daughter of JCK; that the said JCK, the Petitioner, petitioned this court for Letters of Administration for the Estate of her late husband, Paulo Kapkom alias Paulo Saisi Kapkom (the deceased), that the petitioner is aged ninety-seven (97) years and has been mentally ill and unstable for some months and that despite medical treatment, her mental condition has not improved but instead has worsened. The applicant attached a medical report ‘LSI’. The applicant further deponed that her mother JCK is not capable of understanding the proceedings and cannot be able to testify in court; that given the petitioner’s mental condition she prays that she be allowed to act for the petitioner as her next friend; that the objector will not suffer any prejudice if the said application is allowed. 4.The application was opposed and the objector/Respondent, Ezekiel Mwetich filed a replying affidavit dated 6/5/2026. The objector deponed that he is the son of JCK C and that the application is misleading and misconceived because his mother has not lost her memory or mental capacity and is able to understand the proceedings and identify all beneficiaries; that she is alert and coherent, that this application is meant to remove the petitioner from the proceedings and that the applicant is bent on taking over and controlling the succession proceedings; that the medical report documents is not conclusive that the petitioner is mentally challenged but a mere opinion. It was deponed that if the application is allowed, the objector and other beneficiaries would be greatly prejudiced; that the application is brought in bad faith and meant to advance personal interests. 5.The parties agreed to canvass the application through written submissions and both parties did file their respective submissions. It is the applicant’s submission that Rule 73 of the Law of Succession Rules grants the court powers to make such orders as may be necessary to meet the ends of justice and prevent abuse of the court’s process; that the court has therefore powers to protect vulnerable beneficiaries who may be incapable of defending their interests. 6.Counsel further relied on section 47 of the Laws of Succession Act which grants the court jurisdiction to entertain all applications and determine disputes; that the applicant has demonstrated that there is sufficient grounds to allow her prosecute the proceedings being the daughter of the petitioner and the fact that the petitioner is ninety-seven (97) years old and the medical report has confirmed that she has dementia leading to memory loss. Counsel urged the court to do substantive justice to the parties. 7.The Respondents Counsel Mr. Ndinyo, also filed submissions urging the court to consider whether the applicant has established sufficient ground for appointment of a next friend and guardian for the petitioner. Counsel submitted that the burden lies on the applicant to demonstrate that the petitioner is incapable of comprehending the proceedings; that the medical report relied upon cannot be said to be conclusive evidence of mental incapability; that no proceedings under the Mental Health Act have been undertaken. Counsel relied on the case of RE. MMK (2017) eKLR where the court emphasized appointment of persons to manage another’s affairs should only be undertaken upon satisfactory evidence of incapacity. Counsel urged the court not to use Rule 73 of the Laws of Succession Rules and Section 47 of the Act to circumvent due process. Counsel urged the court to decline to grant the prayer sought. 8.I have given due consideration to this application. I agree with the applicant on the scope of application of Rule 73 of the Laws of Succession Rules which provides as follows: - “Nothing in these Rules shall limit or otherwise affect the inherent power of this court to make such orders as may be necessary for the ends of justice or prevent abuse of the process of the court”. 9.The Rule is intended to ensure that justice is done to the parties and to prevent abuse of the court process. 10.The court must apply the rule to both parties who are before the court. By this application, in effect the applicant wants this court to declare the petitioner as a person having mental incapacity and unable to take part in these proceedings due to the mental incapacity due to dementia. 11.The Petitioner is said to be ninety-seven (97) years. It is indeed possible for persons of such age to have mental incapacity but some do not necessarily have mental incapacity. To support her application the applicant has annexed a medical report. The question is whether the court can determine whether or not the petitioner has dementia or mental incapacity through this application. 12.This court is aware that for one to be declared by the court to be unable to manage their affairs due to dementia or mental incapacity, procedure is provided for under the Mental Health Act. Section 26 of the said Act provides on how an application for care and administration of property of persons with Mental illness shall be made. It provides as follows;-“Section 26. Order for custody, management and guardianship (1) The court may make orders—(a)for the management of the estate of any person suffering from mental disorder; and(b)for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.(2)Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person.(3)Whereupon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think fit for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder. 13.Section 2A of the Act provides for purposes of the Act. At Section 2A (e) one of the objectives is to ensure that the rights of a person with mental illness are protected and safeguarded. 14.This court can only establish whether the petitioner has mental incapacity by strictly adhering to the procedure provided for in the law. It is trite that where there is a clear Constitutional or statutory procedure for dispute resolution, that procedure must be strictly followed. In that case of Speaker of National Assembly -V- John Njenga Karume (1992) eKLR the court emphasized “ ….. In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 15.In my considered view, this application is premature. The applicant should have approached the court under the Mental Health Act where there is an elaborate procedure for the court to enquire into and determine the petitioner’s mental status, and hence whether the applicant can be appointed as her guardian. Only after that, can the applicant be allowed to take part in these proceedings on behalf of the Petitioner or be substituted as the petitioner. 16.For the above reasons, the application is not merited, and it is hereby dismissed. Each party to bear their own costs. DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 17TH DAY OF JUNE, 2026HON. R.P.V. WENDOH.JUDGERuling read in the presence of:-Ms. Chebet for Applicant /PetitionerMr. Lokeer holding brief for Mr. Ndiyo for RespondentJuma/Hellen- Court Assistants.