Introduction
1. The plaintiff filed a Chamber Summons Application under the vacation rules together with the instant Notice of Motion both dated 19 th August 2026. The Motion was brought under Order 31 of the Civil Procedure Rules 2010, Section 1A, 1B, and 3A of the Civil Procedure Act, seeking the following reliefs:
a) Spent
b) THAT this Honourable Court be pleased to join Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko as guardians and legal managers of Mutuku Masaku Ngei, the Plaintiff.
c) THAT the pleadings be amended accordingly.
d) THAT the costs of this application be in the cause.
2. The application is premised upon the grounds set out therein and supported by the affidavit sworn by MALAIKA KIOKO on 19 th August 2026. The deponent averred that:
i) She is the daughter to the Plaintiff together with Wayua Hogman and Naomi Wavinya Ngei and their brother Christopher Ngei Mutuku.
ii) The Plaintiff had appointed their late mother Esther Ndulu Mutuku as his donee under a Power of Attorney dated 13 th March 2017. A copy of the Power of Attorney was annexed and marked as "MK-1".
iii) Their late mother died on 13 th November 2025 rendering the power of attorney useless and of no legal consequences. A copy of the death certificate was annexed and marked as "MK- 2".
iv) The Applicants thus moved the High Court in Machakos in HCFMisc/E026/2025-Machakos, and vide an order issued on 17 th July 2026, their father, the Plaintiff herein, was placed under the care of guardians and legal managers namely Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko. A copy of the said order was annexed and marked as "MK-3".
v) That it was mandatory to have Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko joined in this suit as the guardians and legal managers of the Plaintiff.
vi) Upon joinder of the guardians and the legal managers of the Plaintiff, the pleadings need to be amended to reflect the change. A copy of the draft amended plaint was annexed and marked as MK-4.
vii) Her co-guardians and their brother have consented to the deponent recording her statement and appearing in Court to testify on behalf of their father, the Plaintiff. A copy of the consent was annexed and marked as MK-5.
3. Upon considering the Chamber Summons and the Notice of Motion, both dated 19 th August 2026, the Court, vide orders issued on 21 st August 2026, allowed the Chamber Summons and granted leave for the Notice of Motion to be heard during the Court’s vacation. The Respondent was directed to serve the Notice of Motion, which was subsequently listed for inter partes hearing on 31 st August 2026.
4. On 31 st August 2026, the Defendants sought time to file their response and submissions to the application. The matter was reserved for ruling on 18 th September 2026.
5. In opposition to the application, the Defendants filed Grounds of Opposition dated 2 nd September 2026. It is averred that:
a) The application is bad in law, ill-advised and an outright abuse of Court process.
b) Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko as guardians and legal managers of Mutuku Masaku Ngei, cannot be joined as Plaintiff by virtue of interim orders of appointment only.
c) The Applicants without specific appointment as guardian ad litem under order 32 of the Civil Procedure Rules, 2010 cannot otherwise act as such.
d) Appointment as manager of a person adjudged with mental incapacity under the Mental Health Act does not confer authority to institute, maintain suits without express authorization and appointment as guardian ad litem by the court.
e) Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko, having been appointed as managers of Mutuku Masaku Ngei have not been gazetted thereby confirming their said status and as such, lack the locus standi as managers of the Mutuku Masaku Ngei.
f) Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko in their interim capacity as managers of Mutuku Masaku Ngei pursuant to S.26 of the Mental Health Act do not have the capacity to institute and sustain or maintain this suit as managers of Mutuku Masaku Ngei without obtaining permission to act as guardian ad litem.
g) In the absence of formal gazettement and final conferment of their authority to manage, the Applicants cannot institute suit for and or on behalf of Mutuku Masaku Ngei.
h) A bearer of interim orders of a manager of a person with mental health under s.26 does not have the locus standi to institute, maintain and or continue a suit without a duly effected gazette notice of appointment and expressly appointed as guardian ad litem and without which no suit can be maintained, continued, and or sustained.
i) This Application is a non-starter for want of capacity and authority.
j) The Application should be dismissed with costs.
Submissions
6. The Defendants filed their submissions dated 3 rd September 2026.
7. The Defendants submitted that the Applicants had not demonstrated that they had been appointed as managers of the Plaintiff for purposes of instituting or prosecuting this suit. They contended that the Applicants had not exhibited a Gazette Notice evidencing their appointment as managers in accordance with the Mental Health Act. In their view, in the absence of such Gazette Notice, this Court could not indirectly appoint the Applicants as managers and guardians ad litem of the Plaintiff before the process prescribed by law had been completed.
8. The Defendants further submitted that the Applicants had been appointed only as managers and not as guardians ad litem, and that the present application did not seek their appointment as guardians ad litem. They argued that, without such authority, the Applicants could not act in that capacity, whereas the Plaintiff’s mental capacity and health had not been demonstrated before the High Court or this Court.
9. The Defendants urged the Court to exercise restraint and allow the proceedings concerning the appointment of a manager to proceed to their logical conclusion. They contended that the present application was an abuse of Court process, in light of the existence of concurrent proceedings concerning the management of the Plaintiff’s assets.
10. The Defendants further submitted that the Plaintiff ought to be availed before the Court for purposes of assessing his capacity and fitness to participate in the proceedings. They urged the Court to dismiss the application with costs and allow the proceedings before the High Court to conclude, upon which the High Court or this Court could determine whether the Applicants ought to be appointed as guardians ad litem.
Issues for Determination
11. I have carefully read and considered the Plaintiffs’ Application dated 19 th August 2026, the Grounds of Opposition dated 2 nd September 2026, submissions on record and the relevant legal provisions.
12. The Court discerns that the issue for determination is whether the Plaintiff’s Application dated 19 th August 2026 is merited.
Analysis and determination
Whether the Plaintiff’s application dated 19 th August 2026 is merited.
13. The Plaintiff’s application seeks joinder of Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko as guardians and legal managers of Mutuku Masaku Ngei, the Plaintiff (hereinafter referred to as Applicants) and the amendment of the pleadings thereto. It is contended that the Plaintiff had appointed his wife Esther Ndulu Mutuku as his Donee pursuant to the Power of Attorney dated 13 th March 2017. However, the Donee died on 13 th November 2025
14. It is further contended that the Applicants have been appointed as the guardians and legal managers of Mutuku Masaku Ngei, the Plaintiff, vide Court Orders issued on 17 th July 2026 in Machakos High Court HCFMISC/E026 of 2025. In support of their application, they have attached a copy of the Power of Attorney, Death Certificate for Esther Ndulu Mutuku (Donee), and the Court Order relied upon.
15. The issue for determination is whether in light of the aforementioned, the Applicants ought to be joined to the suit and the pleadings amended accordingly.
16. This Court has considered the annexed order emanating from Machakos High Court HCFMISC. /E026/2025. The order indicates that the matter came up for directions on the Notice of Motion dated 3 rd June 2026 on 6 th July 2026 before Honourable Lady Justice J.W.W. Mongare, in the presence of counsel for the Applicants therein. The Court issued the following orders, verbatim:
1. THAT MUTUKU MASAKU NDEI is hereby adjudged to be a person suffering from a mental disorder under Section 26 of the Mental Health Act, Cap 248 of the Laws of Kenya.
2. THAT this Court hereby appoints NAOMI WAVINYA NGEI, WAYUA HOGMAN and MALAIKA KIOKO as the guardians of MUTUKU MASAKU NGEI.
3. THAT this Court hereby appoints NAOMI WAVINYA NGEI, WAYUA HOGMAN and MALAIKA KIOKO as the legal managers of the estate of the subject with powers to take charge and manage MUTUKU MASAKU NGEI’s properties, execute court documents as well as other relevant documents and carry out other incidental and general functions.
4. THAT the matter is now spent and file hereby closed.
17. This Court must consider the effect of the said orders on this suit. The order emanates from a Court of competent jurisdiction exercising its powers under the Mental Health Act and is, unless set aside or otherwise varied, binding upon the parties.
18. In MM –vs- Nancy Kanugu Mbaya (Legal Administratix the Estate of Ayub Mbaya Mwongera) [2018] EKLR , the Court set out the legal basis of substituting a litigant with another on the allegation that a litigant suffers from a mental disorder. It held thus:
". In the present case Plaintiff is suffering from a condition known as severe mental deterioration- see Dr. Kiome’s report.The preamble of the mental health Act provides that; “It is an act of Parliament to amend and consolidate the law relating to the case of persons who are suffering from mental disorder or mental sub-normality with mental disorder, for the custody of their persons and the management of their estate……..”Section 26 of the said Act provides that “The court may make orders— for the management of the estate of any person suffering from mental disorder; and for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person”.In ELC Case No 520 of 2012 Eldoret, Isaac Kipkemboi Chesire & 4 Others Versus Joseph Kimitei Kwamboi & 3 Others And Rose Cheruiyot Rono & 3 Others Interested Parties, a litigant (2nd defendant) had suffered a stroke thus impairing his mental faculties. The Court invoked the provisions of the mental health act and stated that “the Law on management of an estate of a mentally ill person is enshrined in the mental health Act . Orders for the appointment of a person to manage the estate of any person suffering from mental disorder are provided for under section 26 of the mental health act ”. The court further rule that an application for guardian ad litem is to be made by the court which is defined as the High Court under section 2 of the Act…I find no reason to deviate from the aforementioned holding. The person wishing to be substituted in place of the plaintiff should first obtain the guardian ad litem order from the High Court, there after he can apply for substitution before this court.’’
19. The Court in M’laaru (Suing by His Next Friend Jerusha Kanario Mwenda) v Mioro & another [2026] KEELC 1872 (KLR) while considering a preliminary objection challenging the locus standi of the Plaintiff’s next friend to institute and prosecute proceedings on behalf of a person suffering from mental illness, held as follows:
“Needless to say, that a party who seeks to be appointed as guardian ad litem where one has been adjudged a person of sound mind must first approach the High Court pursuant to Sections 26 and 27 of the Mental Health Act for appointment of Guardian Ad Litem. It is through being adjudged as being of unsound mind that the Next Friend would now apply for guardian ad litem to lodge the instant suit and prosecute the suit herein on behalf of the Plaintiff.”
20. The Court further held that:
“For coherence, so long as the said orders are in place and same has not been set aside, same are binding and gives the Next Friend the authority and/or locus standi to bring the suit herein or any other suit and manage the estate of the plaintiff so long as she remains the guardian ad litem or manager of the plaintiff.
38.Whether, or not I agree with the issuance of [sic] interim order in the circumstances is not my place; neither can I deem the interim orders vacated for want of extension. Issues concerning the said Order can only be addressed by the court that issued them. For now, the only Court Order that the suit has been anchored on is the Order referred to by parties and my humble view is that same is a valid Court Order issued by a competent court with Jurisdiction and thus, the Notice of Preliminary Objection fails on this ground”
21. The High Court in its disposition adjudged MUTUKU MASAKU NGEI as a person suffering from a mental disorder under Section 26 of the Mental Health Act and issued substantive orders with respect to his guardianship and the management of his estate. The Court expressly conferred upon the Applicants authority to execute court documents and incidental functions thereof. The matter was thereafter marked as spent and the file closed. There is no evidence before this Court that the orders have been appealed against, reviewed, varied or set aside. It therefore remains valid and binding upon the parties unless and until it is otherwise varied or set aside by a court of competent jurisdiction.
22. It follows that the Defendants’ contention that this Court ought to undertake a fresh inquiry into the Plaintiff’s mental capacity and fitness cannot be sustained as the issue of the Plaintiff’s mental condition has already been considered and determined by a court of competent jurisdiction. In the circumstances, this Court, being of concurrent jurisdiction with the High Court, has no legal basis to reopen the issue or make a contrary finding.
23. This position is reiterated by the Supreme Court in Republic v Chengo & 2 Others [2017] KESC 15 (KLR) where the apex Court while affirming the decision of the Court of Appeal observed thus:
“It is against the above background, that article 162(1) categorizes the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Appeal in the present matter observed that both the specialized Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these courts is subject to supervision or direction from another”
24. Representation of persons adjudged to be of unsound mind, or incapable of protecting their interest on account of a mental infirmity is provided for Order 32 Rule 15 of the Civil Procedure Rules 2010 which provides thus:
“Application of rules to persons of unsound mind [Order 32, rule 15]
The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to 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.”
25. Essentially, the provisions of Order 32 extend to persons already adjudged to be of unsound mind and to persons who have not been so adjudged but are found upon inquiry to be incapable of protecting their interests. In this instance, the Plaintiff falls within the former category, having already been adjudged by the High Court to be suffering from a mental disorder, does not require any further inquiry by this Court.
26. The Court must now determine whether the Applicants, being the appointed guardian and legal managers of the estate of the Plaintiff ought to be joined to these proceedings per the provisions of Order 32.
27. The Defendants contend that the guardians were not appointed as guardians ad litem under Order 32 and must therefore obtain a fresh appointment.
28. Order 32 provides a procedural framework for suits by or against persons of unsound mind. Rule 1 provides thus:
Minor to sue by next friend [Order 32, rule 1]
(1) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
(2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed.
29. Order 32 Rule 4 (2) further states:
Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian ad litem, unless the court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act, or be appointed, as the case may be.
30. By virtue of Order 32 Rule 15 the above applies/extend to persons already adjudged to be of unsound mind.
31. The Defendants contend that the Order did not expressly appoint the guardians to represent the Plaintiff in the present suit. While the Order does not specifically refer to the present proceedings, it expressly appoints the Applicants as legal managers of the Plaintiff’s estate and empowers them to take charge of and manage his properties, execute court documents and perform other incidental and general functions. The Court must give effect to the terms of the Order.
32. In the circumstances, this Court would be taking a restrictive approach were it to construe the Order as confining the guardians’ authority solely to the management of the Plaintiff’s assets. The express power to execute court documents and to undertake other incidental and general functions, extends to acts required for the protection and management of the Plaintiff’s interests in legal proceedings, unless such authority is expressly limited by the Order itself or by the applicable law.
33. This Court is therefore unable to accept the Defendants’ contention that the guardians’ appointment under the Mental Health Act confers no authority relevant to the present proceedings. The express power to execute court documents is inconsistent with the restricted interpretation. No evidence has been placed before this Court demonstrating that the guardians’ authority was intended to be limited or excluded in respect of these proceedings.
34. As aptly held in M’laaru (Suing by His Next Friend Jerusha Kanario Mwenda) v Mioro & another , supra, as long as the High Court Orders remain in force, the Applicants have authority and locus to bring suit herein or any other suit and manage the estate of the Plaintiff so long as they remain the guardians and legal managers of the Plaintiff.
35. The issue that remains for determination is whether any further procedural requirements under Order 32 of the Civil Procedure Rules must be satisfied before the authority conferred upon the guardians may be exercised in the present proceedings.
36. Order 32 Rule 1 provides that a suit instituted by a person adjudged to be of unsound mind shall be instituted in his name by a person who shall be referred to as the next friend. Where the suit is instituted by an advocate, the Rule further requires the next friend to give written authority to the advocate to act on his behalf.
37. It is important to contradistinguish this provision from Order 32 Rule 3 which specifically provides for the appointment of a guardian ad litem where the defendant is a minor. The Rule provides as follows:
Guardian ad litem [Order 32, rule 3]
(1) Where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian ad litem of such minor. (2) An order for the appointment of guardian ad litem may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
38. It is therefore apparent from the reading of Order 32 that the Rules distinguish between the representation of a plaintiff who is a minor, who sues through a next friend, and the appointment of a guardian ad litem where the defendant is a minor. By virtue of Rule 15, these provisions apply, mutatis mutandis , to persons adjudged to be of unsound mind.
39. In the present case, the Plaintiff is the person adjudged to be suffering from a mental disorder. The guardians are seeking to represent him pursuant to an existing order of the High Court appointing them as his guardians and legal managers, which further expressly empowers them to execute court documents. In those circumstances, the Defendants’ contention that the Applicants were required to institute a separate application to be appointed as guardians ad litem under the Civil Procedure Rules is not supported by the provisions of Order 32 Rule 3.
40. This Court therefore finds that the objection founded on the alleged failure to obtain appointment as guardians ad litem under Order 32 of the is misconceived. The Defendants have not identified any provision of Order 32 requiring a guardian appointed under section 26 of the Mental Health Act, in circumstances such as this, to obtain a separate appointment as guardian ad litem where the person under guardianship is the Plaintiff in the proceedings.
41. The Defendants further contend that the appointment is incomplete in the absence of a Gazette Notice. The Court has considered that submission. The existence of any statutory requirement for publication of the appointment must be distinguished from the existence and validity of the judicial order itself. The Defendants have not demonstrated that the absence of a Gazette Notice nullifies the order of appointment or deprives the Applicants of the authority expressly conferred upon them by the High Court. This Court therefore declines to disregard the order on that basis and direct the Applicants to ensure compliance with Section 27(4) of the Mental Health Act within thirty (30) days.
42. On the issue of costs, Section 27 of the Civil Procedure Act provides that costs are at the discretion of the Court and that the general rule is that costs should follow events. In the present case, the Honourable Court elects to have the costs in the cause.
43. Accordingly, the Plaintiff’s Notice of Motion dated 19 th August 2026 is allowed, the applicants are hereby allowed to prosecute this suit on behalf of the plaintiff. Leave to amend the plaint to reflect their representation is hereby granted. The amended plaint and any further compliance witness statements/documents be filed and served within 14 days of this ruling. The defendants to file and serve an amended defence within 14 days of service with the amended plaint. The costs of the application shall be in the cause.
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 18 TH DAY OF SEPTEMBER 2026.
HON. E.G NDERITU L J
ELC KWALE
In the presence of: - Ms Umara for the Plaintiff/Applicant
Mr Kiprono for the Defendants/Respondent
Page | 2 ELCLC E039 OF 2024
1. The plaintiff filed a Chamber Summons Application under the vacation rules together with the instant Notice of Motion both dated 19 th August 2026. The Motion was brought under Order 31 of the Civil Procedure Rules 2010, Section 1A, 1B, and 3A of the Civil Procedure Act, seeking the following reliefs:
a) Spent
b) THAT this Honourable Court be pleased to join Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko as guardians and legal managers of Mutuku Masaku Ngei, the Plaintiff.
c) THAT the pleadings be amended accordingly.
d) THAT the costs of this application be in the cause.
2. The application is premised upon the grounds set out therein and supported by the affidavit sworn by MALAIKA KIOKO on 19 th August 2026. The deponent averred that:
i) She is the daughter to the Plaintiff together with Wayua Hogman and Naomi Wavinya Ngei and their brother Christopher Ngei Mutuku.
ii) The Plaintiff had appointed their late mother Esther Ndulu Mutuku as his donee under a Power of Attorney dated 13 th March 2017. A copy of the Power of Attorney was annexed and marked as "MK-1".
iii) Their late mother died on 13 th November 2025 rendering the power of attorney useless and of no legal consequences. A copy of the death certificate was annexed and marked as "MK- 2".
iv) The Applicants thus moved the High Court in Machakos in HCFMisc/E026/2025-Machakos, and vide an order issued on 17 th July 2026, their father, the Plaintiff herein, was placed under the care of guardians and legal managers namely Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko. A copy of the said order was annexed and marked as "MK-3".
v) That it was mandatory to have Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko joined in this suit as the guardians and legal managers of the Plaintiff.
vi) Upon joinder of the guardians and the legal managers of the Plaintiff, the pleadings need to be amended to reflect the change. A copy of the draft amended plaint was annexed and marked as MK-4.
vii) Her co-guardians and their brother have consented to the deponent recording her statement and appearing in Court to testify on behalf of their father, the Plaintiff. A copy of the consent was annexed and marked as MK-5.
3. Upon considering the Chamber Summons and the Notice of Motion, both dated 19 th August 2026, the Court, vide orders issued on 21 st August 2026, allowed the Chamber Summons and granted leave for the Notice of Motion to be heard during the Court’s vacation. The Respondent was directed to serve the Notice of Motion, which was subsequently listed for inter partes hearing on 31 st August 2026.
4. On 31 st August 2026, the Defendants sought time to file their response and submissions to the application. The matter was reserved for ruling on 18 th September 2026.
5. In opposition to the application, the Defendants filed Grounds of Opposition dated 2 nd September 2026. It is averred that:
a) The application is bad in law, ill-advised and an outright abuse of Court process.
b) Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko as guardians and legal managers of Mutuku Masaku Ngei, cannot be joined as Plaintiff by virtue of interim orders of appointment only.
c) The Applicants without specific appointment as guardian ad litem under order 32 of the Civil Procedure Rules, 2010 cannot otherwise act as such.
d) Appointment as manager of a person adjudged with mental incapacity under the Mental Health Act does not confer authority to institute, maintain suits without express authorization and appointment as guardian ad litem by the court.
e) Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko, having been appointed as managers of Mutuku Masaku Ngei have not been gazetted thereby confirming their said status and as such, lack the locus standi as managers of the Mutuku Masaku Ngei.
f) Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko in their interim capacity as managers of Mutuku Masaku Ngei pursuant to S.26 of the Mental Health Act do not have the capacity to institute and sustain or maintain this suit as managers of Mutuku Masaku Ngei without obtaining permission to act as guardian ad litem.
g) In the absence of formal gazettement and final conferment of their authority to manage, the Applicants cannot institute suit for and or on behalf of Mutuku Masaku Ngei.
h) A bearer of interim orders of a manager of a person with mental health under s.26 does not have the locus standi to institute, maintain and or continue a suit without a duly effected gazette notice of appointment and expressly appointed as guardian ad litem and without which no suit can be maintained, continued, and or sustained.
i) This Application is a non-starter for want of capacity and authority.
j) The Application should be dismissed with costs.
Submissions
6. The Defendants filed their submissions dated 3 rd September 2026.
7. The Defendants submitted that the Applicants had not demonstrated that they had been appointed as managers of the Plaintiff for purposes of instituting or prosecuting this suit. They contended that the Applicants had not exhibited a Gazette Notice evidencing their appointment as managers in accordance with the Mental Health Act. In their view, in the absence of such Gazette Notice, this Court could not indirectly appoint the Applicants as managers and guardians ad litem of the Plaintiff before the process prescribed by law had been completed.
8. The Defendants further submitted that the Applicants had been appointed only as managers and not as guardians ad litem, and that the present application did not seek their appointment as guardians ad litem. They argued that, without such authority, the Applicants could not act in that capacity, whereas the Plaintiff’s mental capacity and health had not been demonstrated before the High Court or this Court.
9. The Defendants urged the Court to exercise restraint and allow the proceedings concerning the appointment of a manager to proceed to their logical conclusion. They contended that the present application was an abuse of Court process, in light of the existence of concurrent proceedings concerning the management of the Plaintiff’s assets.
10. The Defendants further submitted that the Plaintiff ought to be availed before the Court for purposes of assessing his capacity and fitness to participate in the proceedings. They urged the Court to dismiss the application with costs and allow the proceedings before the High Court to conclude, upon which the High Court or this Court could determine whether the Applicants ought to be appointed as guardians ad litem.
Issues for Determination
11. I have carefully read and considered the Plaintiffs’ Application dated 19 th August 2026, the Grounds of Opposition dated 2 nd September 2026, submissions on record and the relevant legal provisions.
12. The Court discerns that the issue for determination is whether the Plaintiff’s Application dated 19 th August 2026 is merited.
Analysis and determination
Whether the Plaintiff’s application dated 19 th August 2026 is merited.
13. The Plaintiff’s application seeks joinder of Naomi Wavinya Ngei, Wayua Hogman and Malaika Kioko as guardians and legal managers of Mutuku Masaku Ngei, the Plaintiff (hereinafter referred to as Applicants) and the amendment of the pleadings thereto. It is contended that the Plaintiff had appointed his wife Esther Ndulu Mutuku as his Donee pursuant to the Power of Attorney dated 13 th March 2017. However, the Donee died on 13 th November 2025
14. It is further contended that the Applicants have been appointed as the guardians and legal managers of Mutuku Masaku Ngei, the Plaintiff, vide Court Orders issued on 17 th July 2026 in Machakos High Court HCFMISC/E026 of 2025. In support of their application, they have attached a copy of the Power of Attorney, Death Certificate for Esther Ndulu Mutuku (Donee), and the Court Order relied upon.
15. The issue for determination is whether in light of the aforementioned, the Applicants ought to be joined to the suit and the pleadings amended accordingly.
16. This Court has considered the annexed order emanating from Machakos High Court HCFMISC. /E026/2025. The order indicates that the matter came up for directions on the Notice of Motion dated 3 rd June 2026 on 6 th July 2026 before Honourable Lady Justice J.W.W. Mongare, in the presence of counsel for the Applicants therein. The Court issued the following orders, verbatim:
1. THAT MUTUKU MASAKU NDEI is hereby adjudged to be a person suffering from a mental disorder under Section 26 of the Mental Health Act, Cap 248 of the Laws of Kenya.
2. THAT this Court hereby appoints NAOMI WAVINYA NGEI, WAYUA HOGMAN and MALAIKA KIOKO as the guardians of MUTUKU MASAKU NGEI.
3. THAT this Court hereby appoints NAOMI WAVINYA NGEI, WAYUA HOGMAN and MALAIKA KIOKO as the legal managers of the estate of the subject with powers to take charge and manage MUTUKU MASAKU NGEI’s properties, execute court documents as well as other relevant documents and carry out other incidental and general functions.
4. THAT the matter is now spent and file hereby closed.
17. This Court must consider the effect of the said orders on this suit. The order emanates from a Court of competent jurisdiction exercising its powers under the Mental Health Act and is, unless set aside or otherwise varied, binding upon the parties.
18. In MM –vs- Nancy Kanugu Mbaya (Legal Administratix the Estate of Ayub Mbaya Mwongera) [2018] EKLR , the Court set out the legal basis of substituting a litigant with another on the allegation that a litigant suffers from a mental disorder. It held thus:
". In the present case Plaintiff is suffering from a condition known as severe mental deterioration- see Dr. Kiome’s report.The preamble of the mental health Act provides that; “It is an act of Parliament to amend and consolidate the law relating to the case of persons who are suffering from mental disorder or mental sub-normality with mental disorder, for the custody of their persons and the management of their estate……..”Section 26 of the said Act provides that “The court may make orders— for the management of the estate of any person suffering from mental disorder; and for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person”.In ELC Case No 520 of 2012 Eldoret, Isaac Kipkemboi Chesire & 4 Others Versus Joseph Kimitei Kwamboi & 3 Others And Rose Cheruiyot Rono & 3 Others Interested Parties, a litigant (2nd defendant) had suffered a stroke thus impairing his mental faculties. The Court invoked the provisions of the mental health act and stated that “the Law on management of an estate of a mentally ill person is enshrined in the mental health Act . Orders for the appointment of a person to manage the estate of any person suffering from mental disorder are provided for under section 26 of the mental health act ”. The court further rule that an application for guardian ad litem is to be made by the court which is defined as the High Court under section 2 of the Act…I find no reason to deviate from the aforementioned holding. The person wishing to be substituted in place of the plaintiff should first obtain the guardian ad litem order from the High Court, there after he can apply for substitution before this court.’’
19. The Court in M’laaru (Suing by His Next Friend Jerusha Kanario Mwenda) v Mioro & another [2026] KEELC 1872 (KLR) while considering a preliminary objection challenging the locus standi of the Plaintiff’s next friend to institute and prosecute proceedings on behalf of a person suffering from mental illness, held as follows:
“Needless to say, that a party who seeks to be appointed as guardian ad litem where one has been adjudged a person of sound mind must first approach the High Court pursuant to Sections 26 and 27 of the Mental Health Act for appointment of Guardian Ad Litem. It is through being adjudged as being of unsound mind that the Next Friend would now apply for guardian ad litem to lodge the instant suit and prosecute the suit herein on behalf of the Plaintiff.”
20. The Court further held that:
“For coherence, so long as the said orders are in place and same has not been set aside, same are binding and gives the Next Friend the authority and/or locus standi to bring the suit herein or any other suit and manage the estate of the plaintiff so long as she remains the guardian ad litem or manager of the plaintiff.
38.Whether, or not I agree with the issuance of [sic] interim order in the circumstances is not my place; neither can I deem the interim orders vacated for want of extension. Issues concerning the said Order can only be addressed by the court that issued them. For now, the only Court Order that the suit has been anchored on is the Order referred to by parties and my humble view is that same is a valid Court Order issued by a competent court with Jurisdiction and thus, the Notice of Preliminary Objection fails on this ground”
21. The High Court in its disposition adjudged MUTUKU MASAKU NGEI as a person suffering from a mental disorder under Section 26 of the Mental Health Act and issued substantive orders with respect to his guardianship and the management of his estate. The Court expressly conferred upon the Applicants authority to execute court documents and incidental functions thereof. The matter was thereafter marked as spent and the file closed. There is no evidence before this Court that the orders have been appealed against, reviewed, varied or set aside. It therefore remains valid and binding upon the parties unless and until it is otherwise varied or set aside by a court of competent jurisdiction.
22. It follows that the Defendants’ contention that this Court ought to undertake a fresh inquiry into the Plaintiff’s mental capacity and fitness cannot be sustained as the issue of the Plaintiff’s mental condition has already been considered and determined by a court of competent jurisdiction. In the circumstances, this Court, being of concurrent jurisdiction with the High Court, has no legal basis to reopen the issue or make a contrary finding.
23. This position is reiterated by the Supreme Court in Republic v Chengo & 2 Others [2017] KESC 15 (KLR) where the apex Court while affirming the decision of the Court of Appeal observed thus:
“It is against the above background, that article 162(1) categorizes the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Appeal in the present matter observed that both the specialized Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these courts is subject to supervision or direction from another”
24. Representation of persons adjudged to be of unsound mind, or incapable of protecting their interest on account of a mental infirmity is provided for Order 32 Rule 15 of the Civil Procedure Rules 2010 which provides thus:
“Application of rules to persons of unsound mind [Order 32, rule 15]
The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to 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.”
25. Essentially, the provisions of Order 32 extend to persons already adjudged to be of unsound mind and to persons who have not been so adjudged but are found upon inquiry to be incapable of protecting their interests. In this instance, the Plaintiff falls within the former category, having already been adjudged by the High Court to be suffering from a mental disorder, does not require any further inquiry by this Court.
26. The Court must now determine whether the Applicants, being the appointed guardian and legal managers of the estate of the Plaintiff ought to be joined to these proceedings per the provisions of Order 32.
27. The Defendants contend that the guardians were not appointed as guardians ad litem under Order 32 and must therefore obtain a fresh appointment.
28. Order 32 provides a procedural framework for suits by or against persons of unsound mind. Rule 1 provides thus:
Minor to sue by next friend [Order 32, rule 1]
(1) Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
(2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed.
29. Order 32 Rule 4 (2) further states:
Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian ad litem, unless the court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act, or be appointed, as the case may be.
30. By virtue of Order 32 Rule 15 the above applies/extend to persons already adjudged to be of unsound mind.
31. The Defendants contend that the Order did not expressly appoint the guardians to represent the Plaintiff in the present suit. While the Order does not specifically refer to the present proceedings, it expressly appoints the Applicants as legal managers of the Plaintiff’s estate and empowers them to take charge of and manage his properties, execute court documents and perform other incidental and general functions. The Court must give effect to the terms of the Order.
32. In the circumstances, this Court would be taking a restrictive approach were it to construe the Order as confining the guardians’ authority solely to the management of the Plaintiff’s assets. The express power to execute court documents and to undertake other incidental and general functions, extends to acts required for the protection and management of the Plaintiff’s interests in legal proceedings, unless such authority is expressly limited by the Order itself or by the applicable law.
33. This Court is therefore unable to accept the Defendants’ contention that the guardians’ appointment under the Mental Health Act confers no authority relevant to the present proceedings. The express power to execute court documents is inconsistent with the restricted interpretation. No evidence has been placed before this Court demonstrating that the guardians’ authority was intended to be limited or excluded in respect of these proceedings.
34. As aptly held in M’laaru (Suing by His Next Friend Jerusha Kanario Mwenda) v Mioro & another , supra, as long as the High Court Orders remain in force, the Applicants have authority and locus to bring suit herein or any other suit and manage the estate of the Plaintiff so long as they remain the guardians and legal managers of the Plaintiff.
35. The issue that remains for determination is whether any further procedural requirements under Order 32 of the Civil Procedure Rules must be satisfied before the authority conferred upon the guardians may be exercised in the present proceedings.
36. Order 32 Rule 1 provides that a suit instituted by a person adjudged to be of unsound mind shall be instituted in his name by a person who shall be referred to as the next friend. Where the suit is instituted by an advocate, the Rule further requires the next friend to give written authority to the advocate to act on his behalf.
37. It is important to contradistinguish this provision from Order 32 Rule 3 which specifically provides for the appointment of a guardian ad litem where the defendant is a minor. The Rule provides as follows:
Guardian ad litem [Order 32, rule 3]
(1) Where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian ad litem of such minor. (2) An order for the appointment of guardian ad litem may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
38. It is therefore apparent from the reading of Order 32 that the Rules distinguish between the representation of a plaintiff who is a minor, who sues through a next friend, and the appointment of a guardian ad litem where the defendant is a minor. By virtue of Rule 15, these provisions apply, mutatis mutandis , to persons adjudged to be of unsound mind.
39. In the present case, the Plaintiff is the person adjudged to be suffering from a mental disorder. The guardians are seeking to represent him pursuant to an existing order of the High Court appointing them as his guardians and legal managers, which further expressly empowers them to execute court documents. In those circumstances, the Defendants’ contention that the Applicants were required to institute a separate application to be appointed as guardians ad litem under the Civil Procedure Rules is not supported by the provisions of Order 32 Rule 3.
40. This Court therefore finds that the objection founded on the alleged failure to obtain appointment as guardians ad litem under Order 32 of the is misconceived. The Defendants have not identified any provision of Order 32 requiring a guardian appointed under section 26 of the Mental Health Act, in circumstances such as this, to obtain a separate appointment as guardian ad litem where the person under guardianship is the Plaintiff in the proceedings.
41. The Defendants further contend that the appointment is incomplete in the absence of a Gazette Notice. The Court has considered that submission. The existence of any statutory requirement for publication of the appointment must be distinguished from the existence and validity of the judicial order itself. The Defendants have not demonstrated that the absence of a Gazette Notice nullifies the order of appointment or deprives the Applicants of the authority expressly conferred upon them by the High Court. This Court therefore declines to disregard the order on that basis and direct the Applicants to ensure compliance with Section 27(4) of the Mental Health Act within thirty (30) days.
42. On the issue of costs, Section 27 of the Civil Procedure Act provides that costs are at the discretion of the Court and that the general rule is that costs should follow events. In the present case, the Honourable Court elects to have the costs in the cause.
43. Accordingly, the Plaintiff’s Notice of Motion dated 19 th August 2026 is allowed, the applicants are hereby allowed to prosecute this suit on behalf of the plaintiff. Leave to amend the plaint to reflect their representation is hereby granted. The amended plaint and any further compliance witness statements/documents be filed and served within 14 days of this ruling. The defendants to file and serve an amended defence within 14 days of service with the amended plaint. The costs of the application shall be in the cause.
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 18 TH DAY OF SEPTEMBER 2026.
HON. E.G NDERITU L J
ELC KWALE
In the presence of: - Ms Umara for the Plaintiff/Applicant
Mr Kiprono for the Defendants/Respondent
Page | 2 ELCLC E039 OF 2024