https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12568

SKK (An adult suing through his daughter and next friend ALWK) v Ruturi & another (Civil Case E228 of 2026) [2026] KEHC 12568 (KLR) (Civ) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12568 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E228 of 2026 KL Kandet, J July 31, 2026 Between SKK (An adult suing through his daughter and next friend ALWK) Applicant and Dr Albert Muthee Ruturi 1st Respondent Nairobi Hospital 2nd Respondent Ruling 1.By a Notice of Motion dated 6th July, 2026, expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 32 rule 15 of the Civil Procedure Rules, the Applicant seeks the following orders:a.That this Honorable Court be pleased to allow ALWK to be appointed the next friend of the incapacitated person (SKK) for the purpose of instituting, prosecuting and maintaining this suit;b.That upon the grant of Order (1) above, this Honorable court be pleased to admit the Plaint dated 30th June, 2026 and deem it as duly filed upon payment of court filing fees.c.Costs of the Application. 2.The Application is founded on the grounds appearing on its face and the supporting affidavit of ALWK sworn on 23rd June, 2026. The Applicant states that Mr. SKK is aged 76 years and has suffered physical and mental infirmity following medical treatment rendered from 28th August, 2023. It is contended that he is mentally disoriented, physically incapacitated and unable to protect his interests in these proceedings. 3.Annexed to the supporting affidavit is a Disability Registration Certificate issued on 31st July, 2025. It classifies Mr. SKK's disability as physical, under the sub-category of peripheral neuropathy, with illness stated as its cause. The certificate does not record a mental or cognitive disability. 4.The Applicant also annexed a document headed “Authority to Plead Documents and Act on My Behalf” sworn by Mr. SKK on 17th June, 2026. In that instrument, Mr. SKK describes himself as “a male adult of sound mind although prevented from appearing in court due to medical infirmity.” He authorizes his daughter to plead, execute documents, attend court and deal with matters arising from the intended claim. 5.The 2nd Respondent opposed the Motion through Grounds of Opposition dated 20th July, 2026. Its position is that the threshold in Order 32 rule 15 has not been met because the only disability proved is physical; no medical evidence establishes unsoundness of mind or mental infirmity; and Mr. SKK's own sworn authority expressly affirms that he is of sound mind. 6.The 1st Respondent filed Grounds of Opposition dated 24th July, 2026 raising substantially similar objections. He adds that the Applicant has neither invoked sections 26 and 28 of the Mental Health Act nor supplied material upon which the inquiry contemplated under Order 32 rule 15 can yield a finding of incapacity. 7.In response, the Applicant filed a further affidavit sworn on 24th July, 2026. She deposes that Mr. SKK underwent surgery in August 2023, was admitted in the 2nd Respondent's Intensive Care Unit and High Dependency Unit, was at one stage intubated and does not fully comprehend or recall the events of his hospitalization. She says that she participated in medical decisions on his behalf and later pursued a complaint relating to his treatment. 8.The Applicant further attributes confusion and psychiatric changes to hyponatraemia said to have occurred during the hospitalization. She states that Mr. SKK was reviewed by a psychiatrist, Dr. Pius Kigamwa, but that the relevant clinical notes remain with the 2nd Respondent. She also relies on two computed tomography reports of the brain. The report dated 2nd October, 2023 concludes that the brain examination was normal. The report dated 28th October, 2023 records involutional brain atrophy. Neither report offers an opinion on Mr. SKK's present ability to understand these proceedings, instruct counsel or protect his interests. 9.The court notes that the annexed draft Plaint raises a substantial medical negligence claim concerning an open abdominal aortic aneurysm repair performed on 28th August, 2023 and the postoperative care that followed. The merits of that claim are not before the Court in this Application. The present ruling is confined to the procedural capacity in which the claim may be advanced. 10.The Motion was placed before the Court under certificate of urgency because the Applicant apprehends that the limitation period applicable to an action founded on tort will expire in August 2026. Urgency, however real, cannot substitute the statutory finding which Order 32 rule 15 requires before an adult is placed under the representation of a next friend. Analysis and Determination 11.I have carefully considered the Motion, the affidavit evidence, the Grounds of Opposition and the documents placed before the Court. The issues arising for determination are:i.Whether prior adjudication or appointment under sections 26 and 28 of the Mental Health Act is a condition precedent to relief under Order 32 rule 15;ii.Whether the evidence establishes that Mr. SKK is, by reason of unsoundness of mind or mental infirmity, incapable of protecting his interests in this suit; andiii.What orders should follow regarding the Motion and the Plaint already lodged in this cause. 12.Order 32 rule 15 of the Civil Procedure Rules extends the protective provisions relating to minors to two classes of adults: persons adjudged to be of unsound mind and 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. 13.The rule is deliberately framed in the alternative. A prior adjudication under the Mental Health Act is sufficient, but it is not indispensable. In the absence of such adjudication, the Civil Procedure Rules confer upon the Court seized of the suit the power and duty to conduct an inquiry and make the requisite functional finding. Sections 26 and 28 of the Mental Health Act concern, in their proper setting, guardianship, management of an estate and orders concerning a person suffering from mental illness. The limited appointment of a next friend for identified litigation under Order 32 is distinct. I therefore do not accept the 1st Respondent's contention that a petition under those sections is an inflexible condition precedent. 14.The inquiry under rule 15 is nevertheless not a formality. It safeguards two rights which may pull in opposite directions: access to justice for a litigant who genuinely cannot protect his interests, and the autonomy, dignity and legal agency of an adult who can. The Court must therefore make a positive, evidence-based finding of litigation incapacity. Age, illness, physical disability, dependence on a family member or an inability to attend court physically does not, without more, establish that incapacity. 15.In Grace Wanjiru Munyinyi & Another v Gedion Waweru Githunguri & 5 Others [2011] eKLR: “The starting point is the presumption that must always exist, until it is proved otherwise, that every person is of sound mind.” the Court of Appeal affirmed the presumption that every person is of sound mind until the contrary is proved and emphasized the seriousness of alleging mental disorder. That binding principle was recently reiterated by the Court of Appeal in KKK v MM (Civil Appeal 483 of 2019) [2025] KECA 1383 (KLR), where the absence of medical material was material to the rejection of an allegation of mental incapacity. 16.In Hellen Mbinya King'ola v HNO & Another [2019] eKLR:“The next question is whether any enquiry into the mental capacity of the Defendant has been conducted. Order 32 Rule 15 provides that this must be done before such orders are granted. The reasoning is that no man should be adjudged a lunatic without a proper inquiry. It would be wrong for a court to rely only on reports and letters to declare a person to be of unsound mind, given the far-reaching consequences of such a declaration, not to mention the stigma attached.” the High Court explained, persuasively, that rule 15 applies both to persons already adjudged to be of unsound mind and to those whom the Court finds, upon inquiry, incapable of protecting their interests. The finding is directed not merely at diagnosis but at the person's ability to protect his or her interests in the particular litigation. 17.Applying those principles, the evidential starting point in this case is the Disability Registration Certificate. It proves a physical disability, namely peripheral neuropathy. It does not identify unsoundness of mind, a mental disorder, a cognitive impairment or any inability to make decisions. A physical impairment may call for reasonable accommodation in the conduct of proceedings; it does not by itself extinguish or suspend an adult's procedural capacity. 18.The strongest contemporaneous evidence is Mr. SKK's own sworn authority of 17th June, 2026. It was executed only nineteen days before the Motion. In it he expressly declares that he is of sound mind. He identifies the intended litigation, authorizes specified acts and distinguishes his physical inability to appear from his mental ability to give instructions. That document is not a technical blemish in the Applicant's case. It directly contradicts the jurisdictional fact upon which the appointment of a next friend is sought. 19.The further affidavit does not cure that contradiction. Much of it concerns Mr. SKK's condition during a difficult hospital admission in 2023. An inability to recall every event while intubated or critically ill does not establish present incapacity to protect one's interests nearly three years later. The Court must evaluate capacity at the time of the proceedings and in relation to the decisions which the litigation requires. 20.The radiological material is equally inconclusive. The first CT examination was normal. The second recorded involutional brain atrophy, but no clinician has explained its functional significance. The Court cannot convert a radiological description into a psychiatric or cognitive conclusion. The alleged psychiatric assessment has not been exhibited; there is no affidavit from the psychiatrist; and there is no current assessment addressing whether Mr. SKK understands the nature and object of the suit, can weigh advice, communicate a decision or instruct his advocates. 21.I am conscious that medical evidence is not the only means by which incapacity may be demonstrated and that the Court's inquiry may include its own interaction with the person concerned. In this case, however, Mr. SKK was not presented for an in-person or virtual inquiry. The family evidence, while relevant, is general and is contradicted by Mr. SKK's own recent sworn declaration. 22.The proposed next friend is Mr. SKK's daughter. Nothing before the Court suggests an interest adverse to his, and her familiarity with the history of the intended claim is evident. Her suitability is therefore not the difficulty. The anterior condition—proof that Mr. SKK cannot protect his own interests by reason of mental infirmity—has not been established. 23.It follows that the Court cannot make the finding required by Order 32 rule 15. To appoint a next friend on the present record would equate physical disability and reliance on family assistance with loss of legal agency. That result would be inconsistent with the presumption of capacity and with the equal recognition before the law accorded to persons with disabilities. 24.The above notwithstanding, the record shows that the Plaint dated 30th June, 2026 was presented through the electronic filing system on 7th July, 2026 and this cause was assigned HCCC/E228/2026. Prayer 2, which asks that the Plaint be admitted and deemed filed upon payment of fees, has therefore been overtaken by the act of filing. What remains irregular is its description of Mr. SKK as suing through a next friend whose appointment has not been sanctioned. 26.The overriding objective and Article 159(2)(d) of the Constitution favour correction of that curable description rather than nullification of a potentially time-sensitive claim. The Respondents suffer no prejudice if Mr. SKK regularizes the pleading and proceeds in his own name if he chooses that option. 27.In the foregoing the court makes the following orders:a)The Notice of Motion dated 6th July, 2026 is disallowed. The Plaint dated 30th June, 2026, having been filed and assigned a case number shall however remain on the court record, pending any other appropriate steps that the parties may take before expiry of the limitation period. In default the plaint shall remain struck out.b)There shall be no order as to costs of this application DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026 VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn the Presence of:Ms Kyalo for the Applicant.Mutisya for the Respondent.Court Assistant: Aggrey.