https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6592

In re ADKA (Subject) (Miscellaneous Petition E005 of 2026) [2026] KEHC 6592 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6592 (KLR) Republic of Kenya In the High Court at Kakamega Miscellaneous Petition E005 of 2026 AC Bett, J May 15, 2026 IN THE MATTER OF: DR. A.D.K.A. ………………………………………………………………..……….. SUBJECT In the matter of RSA Petitioner Judgment 1.Through a Petition dated 3rd March 2026, the Petitioner who is a wife to the Subject Dr. A.D.K.A seeks a declaration, inter alia, that the Subject is a person suffering from mental disorder. She further prays that she be appointed the legal Guardian and Manager of the Subject’s estate. 2.The Petition is supported by an affidavit sworn by the Petitioner who has produced a marriage certificate in proof of her claim and averred that they have three children with the Subject who is a retired University Lecturer. 3.In support of her prayers, the Petitioner has produced a medical report from Mr. Johnson L. Murila, a Consultant Orthopaedic Surgeon made on 2nd September 2024 and another report from Professor Erastus O. Amayo, a Consultant Neurologist dated 10th June 2025. Professor Amayo indicates that the Subject suffers from Parkinsons disease and dementing illness among other chronic ailments. It further indicates that an MRI performed on the Subject showed marked cerebral atrophy and that the Subject is currently dependent on others for his daily activities. Photographs of the Subject and a letter dated 19th February 2026 from the Area Chief Butsotso Central Location confirm the Petitioner’s claims and the fact that the Subject suffers from multiple health problems including arthritis which led to knee replacement, and pressure sores. Of significance is the confirmation by the Chief that the Subject is dependent on others and utters few words in whispers and is wheel chair bound. 4.The Chief recommends that the Petitioner, who is the Subject’s legal wife, be appointed as his Guardian and allowed to process his terminal benefits and access his bank accounts for purposes of medication and maintenance of the Subject. 5.The court directed that the children of the couple file a consent to the proposed appointment of the Petitioner as a legal Guardian and Manager of the Subject’s estate and they did so. 6.At the hearing, the Petitioner testified and relied on her affidavit dated 3rd March 2026. She confirmed that the averments in the said affidavit were true and said that she was not aware of any other child of the Subject except for her three (3) sons. She said that only two (2) of the sons were present in court as the third son had been left to take care of the Subject. 7.One of the Subject’s sons, Kevin testified on behalf of his siblings. He testified that they consented to the filing of the Petition by the three of them. M. A. who was also present confirmed consenting to the Petition. Determination 8.Section 26 of the Mental Health Act provides that:-“(1)An application for an order for the management and administration of the estate of a person with mental illness may be made to the court, in the following order of priority, by—(a)a supporter of the person with mental illness; or(b)the representative of the person where the person with mental illness has not appointed a supporter.(2)An application under subsection (1) shall be submitted together with an affidavit setting out—(a)the grounds upon which the application is made;(b)the full particulars as to the property and relatives of the person to whom it relates; and(c)a certified true copy of the admission or treatment and particulars in respect of person duly admitted as a person with mental illness.(3)A notice of the application under subsection (1) shall, in such manner as the court may direct, be served upon the—(a)person in respect of whom the application is made; or(b)where an application is made by a supporter to the representative of the person with mental illness.(4)Despite the provisions of subsection (3) the court may make an order for the service upon any other person to whom, in the opinion of the court, notice of the application should be given.(5)The court may waive the requirement for service under subsection (3)(a) if the court considers service impracticable, inexpedient or would be ineffectual.(6)The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—(a)court to examine the person; or(b)person to be examined by a qualified registered mental health practitioner.” 9.For an order under the Mental Health Act to issue, it must be proved that the person who is the subject of the application suffers from a mental disorder, that the person seeking the orders to be a legal Guardian or Manager is fit to be so appointed, that the Subject is so mentally impaired as to be unable to manage his own affairs independently and in a responsible manner, and that the person seeking appointment will perform is/her duties as a legal Guardian/Manager responsibly and in the best interest of the Subject. See In Re NMK [2017] eKLR, In Re Estate of VFM (Patient) [2020] eKLR, and In re BKON (Subject) [2025] KEHC 3638 (KLR). 10.The Court ordered a social inquiry into the condition of the Subject and a Social Inquiry report dated 17th March 2026 was filed on 7th April 2026. The report indicate that the Subject suffered from prolonged chronic arthritis dating back to 2011 and that in May 2024, he underwent surgery to his right leg which coincided with a clinical diagnosis of dementia. Further medical complications in July 2024 are said to have resulted in total physical and cognitive dependency. 11.The report confirms that the Petitioner is the Subject’s wife of 48 years, a woman of high social standing with no criminal record. It indicates that in August 2025, the family relocated from Nairobi to their ancestral home to facilitate a more stable environment for the Subject who on evaluation, exhibits a complete lack of cognitive awareness regarding his surroundings and requires full time assistance which is given by his wife and a professional nurse-aid. 12.The Petitioner is recommended as a suitable Guardian for the Subject due to her matrimonial standing, clear record, and demonstrable prudence in management of resources so far as the primary care giver of the Subject. 13.The Petitioner has demonstrated that the Subject is critically ill. At his age, chances of full recovery are minimal as he suffers from debilitating mental conditions that require constant medication and check up. It cannot be gainsaid that medical check-ups, medication and round the clock care of a wheel-chair bound patient requires huge resources. The Subject is entitled to access the best medical care and treatment as he has a fundamental right under Article 57 (c) of the Constitution, to live in dignity and respect. This court is empowered to make such orders as are necessary to ensure the realization of the Subject’s inherent right to live in dignity and respect. 14.In G & 2 others v. M & 3 others [2024] KEHC 11635 (KLR) reiterated In Re BKON (Supra), the Court stated:-“…They are the nuclear family. The marriage vows require spouses to stick together through adversity such as sickness. Spouses are not fair-weather acquaintances. The spouse herein is willing and prepared to take care of her spouse." 15.Flowing from the above, it is in the best interest of the Subject that his dear wife, who has 50 years and has been taking care of him using her resources since he became incapacitated, be appointed his Legal Guardian and Manager of his estate as she is best placed to understand him and to wish him the best of treatment. Since the Subject’s children have consented, and the court having considered all the documents including the photographs produced by the Petitioner, I hold that the Petition is merited. 16.Consequently, the Petition is allowed and the following orders granted:-a.The Subject is hereby declared a person suffering from mental disorder within the meaning of Section 26 of Mental Health Act.b.The Petitioner is appointed the legal Guardian of the Subject.c.The Petitioner is appointed the Manager of the Estate of the Subject pursuant to Section 28 of the Mental Health Act, with authority to manage the bank accounts, pension and properties of the Subject for the benefit of the Subject.d.The Petitioner shall, in accordance with Section 27 (4) of the Mental Health Act, publish a notice of her appointment in the Kenya Gazette within 30 days.e.The Petitioner shall within six (6) months file an inventory of the Subject’s estate.f.The costs of this Petition shall be borne by the Subject’s estate. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 15TH DAY OF MAY 2026.A. C. BETTJUDGEIn the presence of:Applicant in personCourt Assistant: Polycap