https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4278

Okumu v Oungo (Enviromental and Land Originating Summons 1 of 2020) [2026] KEELC 4278 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEELC 4278 (KLR) Republic of Kenya In the Environment and Land Court at Busia Enviromental and Land Originating Summons 1 of 2020 L Waithaka, J July 6, 2026 IN THE MATTER OF THE LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA AND IN THE MATTER OF THE REGISTERED LAND ACT CAP 300 (REPEALED) LAWS OF KENYA AND IN THE MATTER OF L.R NO. SAMIA/BUTABONA/515 Between Joseph Oundo Okumu Plaintiff and Christopher Kachero Oungo Defendant Ruling 1.Vide a notice of motion dated 9th December 2025, the plaintiff/applicant seeks leave to amend his suit (originating summons) to inter alia bring in a next friend as his legal representative. 2.The application is premised on the grounds that the suit (originating summons), needs to be amended to bring out the real issues; that the plaintiff/applicant’s mental and physical status has deteriorated to the extent that he needs a next friend to act for him and that it is in the interest of justice that the orders sought be granted. 3.The application is supported by the affidavits of the plaintiff/applicant’s advocate on record and the intended next friend, James Oundo Okumu. Annexed to the affidavits is a letter from Mediva Wellness Center, dated 12th February 2024 showing that the plaintiff/applicant has been under medication for dementia among other health challenges. Also annexed to the affidavits is the draft amended originating summons. 4.According to the plaintiff/applicant’s counsel, owing to the plaintiff/applicant’s health condition, the plaintiff/applicant is no longer in a position to remember, articulate and prosecute his case unless assisted by a next friend. 5.In reply and opposition to the application, the respondent filed a replying affidavit sworn on 19th December 2025 in which he depones/contends that the plaintiff/applicant has not placed before this court any evidence to demonstrate that he was suffering from dementia or mental incapacity at the time of instituting the suit or that such incapacity has rendered him unable to understand or conduct proceedings; that the medical letter annexed and relied upon by the applicant, dated 12th February 2024, is outdated and does not reflect the applicant’s current mental or physical condition; that there is no recent medical report or comprehensive psychiatric assessment from a qualified specialist annexed to confirm that the applicant is presently incapable of making sound judgment or giving instructions to his advocate on record and that that the annexed medical report merely states that the applicant suffers from dementia and minor depression, without stating the extent, severity or effect of the alleged condition on his ability to conduct litigation. 6.The respondent further depones/contends that the applicant has neither been declared a person of unsound mind under any law nor has any legal guardian or manager of his affairs been appointed pursuant to the Mental Health Act; that the applicant instructed his current advocate to represent him on 7th November 2024, which act according to the respondent, shows that the applicant is not mentally incapacitated as claimed. 7.Terming the applicant’s true intention as amendment of his pleadings, which amendments he terms prejudicial to him as it alters the nature and scope of the applicant’s suit, the respondent avers that the applicant is his neighbor, a veterinary doctor, who moves around treating animals hence not sick as claimed. 8.In a rejoinder, the applicant filed a supplementary affidavit sworn on 11th March 2026 by the intended next friend, James Oundo Okumu, who depones that the respondent is confusing him with the plaintiff/applicant as he is the one who is a veterinary doctor and not the plaintiff/applicant. The intended next friend asserts that the plaintiff/applicant, who is his brother, is mentally ill and lacking the capacity to prosecute his suit. 9.The application was disposed of by way of written submissions. 10.In his submissions filed on 6th May 2026, the applicant has submitted/addressed the court as follows: -“…the application dated 9th December 2025 is a harmless application that seeks to amend the Originating Summons to bring in a next friend to act for the Applicant who is suffering from Dementia and cannot make sound judgment, including prosecuting his case. He has annexed a medical report to prove his condition.The application is opposed. Surprisingly so, because there is no demonstration that the respondent will suffer any prejudice. The gist of the respondent’s opposition is based on mere allegations challenging a medical report without a second medical report. The only person who can challenge the medical report is another medical doctor not a lay man.The other ground of opposition is based on mistaken identity which has been clarified by the Supplementary Affidavit sworn by James Oundo Okumu, the intended next friend. In any event, the issues raised on identity can be canvassed during the hearing.…We pray that you allow the application to expedite the hearing of the main suit. 11.In his submissions, dated 20th April 2026, the respondent has submitted/addressed the Court as follows: -“…The application raises the following issues:a.Whether the applicant has met the legal threshold for appointment of a next friend;b.Whether the evidence tendered establishes mental incapacityc.Whether the application is merited…” 12.On whether the applicant has met the legal threshold for appointment of a next friend; the respondent submits as follows:“The governing provision is Order 32 Rule 15 of the Civil Procedure Rules (2010) which provides….Further, the burden lies on the applicant to demonstrate incapacity. Under the Mental Health Act, a person’s incapacity is established through:a.Medical evidence and/orb.Formal adjudication and appointment of a guardian or manager.The Court in MMM V AMK (2016) e KLR held that…Similarly, in the case of ZWN v MWN (2017) e KLR the Court emphasized that…In the present case, no adjudication of unsoundness of mind exists, no guardian or manager has been appointed and the evidence falls far below the required threshold. The applicant has failed to satisfy the requirements under Order 32 Rule 15.The applicant’s own actions demonstrate capacity. He instituted the suit through an advocate of his choice in the year 2020 and changed advocates in November 2024. He also swore an affidavit on 31/10/2024 and he continues to actively prosecute the matter. This is inconsistent with incapacity. In the case of PWN V DWN (2019) e KLR the Court held that:“A litigant who actively instructs counsel and participates in proceedings cannot, without compelling evidence, be deemed incapable.”The applicant has not been declared a person of unsound mind under the Mental Health Act. In the case of MWK v AMW (2020)e KLR the Court stated:“While formal adjudication is not mandatory, it’s absence places heavier burden on the applicant to prove incapacity through cogent evidence.This burden has not been discharged by the applicant. This suit was instituted in the year 2020 and until the year 2024 the applicant has continued to instruct counsel thus he is aware of proceedings and has ability to give instructions since he changed advocates and has capacity to make decisions. This is inconsistent with the claim of inability to make sound judgment.” 13.As to whether the evidence tendered establishes mental incapacity, the respondent submits/addresses the court as follows: -“The only document relied upon is a letter dated 12/2/2024 indicating dementia and minor depression. This evidence is stale, outdated and insufficient for the following reasons:1.The suit was filed in the year 2020 and the applicant actively participated in the proceedings and2.The matter was scheduled for hearing and no recent medical evaluation has been presented to demonstrate the applicant’s current condition.Mental incapacity must be established at the time of the application and not based on outdated medical opinion.There is no formal adjudication under the Mental Health Act and there is no recent medical report meting the threshold of incapacity to manage one’s affairs. A mere allegation of dementia does not automatically render a party legally incapable.” 14.As to whether the application is merited, the respondent submits/addresses the court as follows:“The principles governing amendment of pleadings are well settled. Amendment should be allowed if made in good faith and without prejudice. However, amendments should not be allowed where they introduce new cause of action, cause prejudice to the opposing party and are made late in the proceedings without justification. Allowing the amendment will require reopening of pleadings, delay the hearing and prejudice the respondent who is ready to proceed with the hearing.In the application, the applicant seeks to introduce new matters and new documents at a very late stage. No sufficient explanation has been provided for delay of over 6 years.The late filing of an application for a next friend, reliance on an outdated medical evidence and an attempt to amend pleadings on the eve of hearing and introducing new documents six years after filing the suit demonstrates that the application is frivolous and vexatious; calculated to delay justice and is an abuse of Court process.ConclusionThe applicant has failed to provide credible and current medical evidence of incapacity, meet the threshold for appointment of a next friend and justify the late amendment of pleadings and introduction of new evidence 6 years later after filing the suit.Ii is our humble submissions that this application be dismissed and the matter proceeds for hearing and final disposal and costs be awarded to the respondent.” 15.From the grounds taken up in support of the application, the response thereto and the submissions by the parties, I find the sole issue for the court’s determination to be whether the applicant has made up a case for being granted the orders sought. 16.In that regard, a review of the grounds upon which the application is premised and the affidavit evidence filed in support thereof, shows that the applicant desires to appoint a next friend to represent him in this case on account of ill-health, which makes him unable to prosecute his case. In a bid to demonstrate his health condition, the applicant has annexed ‘a medical report’ dated 12th February 2024. The report/letter, from Mediva Wellness Center, shows that at the time of writing the letter or report, the applicant was 64 years old, was epileptic and was having dementia (loss of cognitive functioning, thinking, remembering and reasoning to such extent that it interferes with his daily life and activities). The doctor recommended that the applicant be relieved from strenuous activities. 17.The report notes that sometimes the applicant suffers from confusion about what year/season it is or where he is; forgets events and is unable to recall personal history. Whilst the report was prepared nearly two years before the present application was filed, in the absence of any evidence showing that the applicant’s condition has improved, I have no basis for doubting the report or evidence presented before this court showing that the applicant may not be able to properly represent his interest in court. 18.The Mental Health Act, defines a person with mental illness as follows: -“… a person diagnosed by a qualified mental health practitioner to be suffering from mental illness.” 19.The Mental Health Act provides for the rights of a person with mental illness. Those rights include the right to appoint a supporter and the right to receive reasonable care, assistance and protection from the family and the state. 20.Under section 3 I of the Mental Health Act, a supporter of a person with mental illness may be appointed by the person with mental illness or by his representatives (who include his or her spouse, children, parent, relative or a person under whose care or charge the person with mental illness is). The duties of a person appointed as a supporter of a person with mental illness include production at any hearing, independent medical reports and such other reports or evidence that are relevant to the status of the person with mental illness; and to attend, participate and be heard in any hearing under this Act. In that regard see 3 I of the Mental Health Act. 21.Under section 3 K of the Mental Health Act, a person with mental illness has a right to recognition before the law and shall enjoy legal rights on an equal basis with other persons in all aspects of his life. One of the rights of a person with mental illness provided for by law, is the right to appoint a supporter as contemplated in section 3 I of the Mental Health Act. That right may be exercised by the person with mental illness or his representative. Section 3 I of the Mental Health Act provides adequate safeguards and means of involving a person with mental illness in matters that affect him. 22.It is trite law that where a law provides for a procedure of dealing with an issue, that procedure ought to be complied with or exhausted before recourse is had to court. In the circumstances of this case, the Mental Health Act provides for a mechanism for appointment of supporter of a person with mental illness, which process adequately addresses the issues presented before this court for determination. 23.Being of the view that the provisions of Section 3 I of the Mental Health Act adequately addresses the issue of appointment of a supporter who once appointed is empowered to represent the applicant in proceedings like the proceedings before this court, I decline to grant the order sought in the application to the extent that it seeks the appointment of a next friend to represent the applicant. The applicant may move the court upon appointment of the intended next friend or any other member of his family as his supporter for appropriate orders. 24.As to whether the applicant has made up a case for being granted leave to amend his pleadings in the manner shown in his draft amended originating summons, having considered the intended amendments and the grounds offered in opposition to those amendments, it is the view of the Court that the respondent has not demonstrated that allowing the intended amendments will introduce a new cause of action and/or cause him prejudice incapable of being remedied by award of costs. 25.The upshot of the foregoing is that the application partially succeeds in that I allow the plaintiff/applicant to amend his pleadings in the manner indicated in his draft amended originating summons but decline to admit the intended next friend. 26.On costs of the application, the same shall be in cause. 27.Orders accordingly. RULING DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 6TH DAY OF JULY, 2026 THROUGH MICROSOFT TEAMSL. N. WAITHAKAJUDGEIn the presence of:-Mr Onsongo for the ApplicantN/A for the RespondentCourt Assistant: Bedan