Businesswoman declared mentally fit for loan dispute against late sister’s children

The dispute first arose after Fatmabai discovered that her properties and businesses had been taken over while she had temporarily relocated to Nairobi in 2014 to settle her elder daughter in university.

At the time, she had left the day-to-day running of her businesses in the hands of her sister’s children. She returned to Mombasa in 2015 to care for her ailing sister, who passed away three months later.

The defendants, including Abdeel Enterprises Limited and Parviz Haiderli Nathoo, among others, filed a Notice of Motion in September 2024, claiming that Fatmabai suffered from Major Depressive Disorder and was therefore incapable of comprehending or participating in legal proceedings. 

They sought to have her suit dismissed or struck out, or, in the alternative, for her to deposit security for costs. They relied on a private medical report dated September 30, 2023 and previous instances where Fatmabai had executed a Power of Attorney in favor of her daughter in related matters.

Fatmabai admitted to having experienced episodes of depression in the past, including a brief period of treatment following her 2008 divorce and again in 2022 during the current dispute. 

However, through her lawyer Hans Oichoe she strongly contested the defendants’ claims, maintaining that her condition did not impair her ability to participate in court. She described offensive characterizations by the defendants as “mad” or “psycho” as stigmatizing and unfounded. She also asserted that her emotional distress had been exacerbated by the defendants’ alleged unlawful takeover of her businesses and properties.

The court examined the submissions from both sides and noted that while depression is a recognized mental health condition, it does not automatically render a person legally incapacitated. Under Kenyan law, legal capacity depends on an individual’s ability to understand the nature of the proceedings and provide instructions to their legal representatives.

Judge Peter M. Mulwa emphasized that no credible, court-verified medical evidence had yet been presented to conclusively prove that Fatmabai was incapable of prosecuting her suit. He also highlighted that striking out a suit is a drastic measure and should only be applied when a case is clearly unsustainable.

The court found that Fatmabai’s allegations of fraud and unlawful control over her businesses and properties warranted a full hearing on the merits.

In his ruling delivered virtually on July 31, 2025, Judge Mulwa declined all the defendants’ prayers for a declaration of incapacity, for dismissal or striking out of the suit, and for security for costs.

The court ordered an independent mental assessment to be conducted at Mathari National Teaching and Referral Hospital under court supervision.