Court orders mental tests for Nyachae widow over power of attorney row

The High Court has ordered a judicial inquiry into the mental capacity of Martha Mwango Nyachae, whose power of attorney is at the center of a dispute over the management of the late Simeon Nyachae’s family companies.

In a ruling delivered on June 30, Justice Peter Mulwa directed that Martha, a former wife of Nyachae be produced before the court on July 16, for an inquiry to determine whether she has the legal capacity to execute the power of attorney that authorized the lawsuit filed on her behalf.

The suit was instituted by her son, Michael Nyachae, who, relying on a power of attorney allegedly donated by Martha on May 3, 2021, sued Grace Nyachae, another wife of the late Simeon Nyachae and her son, Leon Nyachae, over the management of the family’s companies.

Grace and Leon have challenged the validity of the power of attorney, arguing that a medical report filed in court by Michael’s advocates indicates that Martha suffers from dementia, rendering her incapable of legally donating the authority to act on her behalf.

The issue arose during the cross-examination of a witness when Senior Counsel Philip Murgor raised a preliminary objection, arguing that the Plaintiff’s authority to institute the proceedings rests on a power of attorney allegedly executed by a person suffering from dementia.

Justice Mulwa ruled that a medical report dated June 11, 2025, filed by the Plaintiff, contains a diagnosis of dementia.

He said that while the Plaintiff relies on the report to demonstrate Martha’s capacity, the Defendants rely on the same document to challenge the validity of the power of attorney.

“The diagnosis of dementia in the medical report dated 11th June 2025 is not a mere allegation. Rather, it is a medical finding by a qualified professional,” the judge said

The court further held that the Plaintiff had indicated that neither the doctor who prepared the report nor the advocate who commissioned the supporting affidavit would be called to testify, leaving the court unable to interrogate the report through cross-examination.

Justice Mulwa held that the court has a duty to inquire into the mental capacity of a person who may be incapable of protecting their own interests, even if they have not been formally declared to be of unsound mind.
He said that such an inquiry is “not a mere formality but a substantive judicial exercise that must be undertaken with utmost circumspection.”

The judge rejected submissions by counsel for the Plaintiff, Dr. Kenyariri, that the objection was intended to delay the proceedings, holding that the question of legal capacity goes to the very foundation of the court’s jurisdiction.

“A suit can only be brought by a person who has legal capacity or by a properly appointed representative of a person who lacks such capacity,” the court ruled.

Justice Mulwa clarified that the court was not making a finding that Martha lacks capacity but was exercising its obligation to ensure the proceedings are properly founded before the case proceeds.

The court ordered that Martha be produced for the judicial inquiry on July 16, stayed all further proceedings in the main suit pending the outcome of the inquiry, and directed that the costs of the application abide the outcome of the case.

“The Court hereby orders that a judicial inquiry be conducted pursuant to Order 32 Rule 15 of the Civil Procedure Rules, 2010, to determine the mental capacity of Martha Mwango Nyacha,” ruled the court.