https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8709

In re CNP (A Person Suffering From Menta Disorder) (Family Miscellaneous Civil Case E109 of 2025) [2026] KEHC 8709 (KLR) (15 June 2026) (Judgment) Neutral citation: [2026] KEHC 8709 (KLR) Republic of Kenya In the High Court at Bungoma Family Miscellaneous Civil Case E109 of 2025 MS Shariff, J June 15, 2026 IN THE MATTER OF: ARTICLE 22 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: SECTIONS 2, 26, 27, AND 28 OF THE MENTAL HEALTH ACT CAP 248 LAWS OF KENYA IN THE MATTER OF: ORDER 32 RULE 15 OF THE CIVIL PROCEDURE RULES 2010 IN THE MATTER OF: THE ESTATE OF CNP (A PERSON SUFFERING FROM MENTAL DISORDER) IN THE MATTER OF: NP THE PROPOSED MANAGER In the matter of NP Petitioner Judgment 1.The Petitioner NP has petitioned this court for his appointment as the manager of the estate and affairs of his father, one Dr.CNP (PHD), vide a petition dated 11.11.2025. 2.The Petitioner has invoked among other, the provisions of article 22 of the Constitution and sections 2, 26, 27 and 28 of the Mental Health Act Chapter 248 of the Laws of Kenya and swore an affidavit dated 7th November 2025 in support of the petition. He later on, with leave of this court, swore two more affidavits. 3.The petitioner has asserted that his father, the ward, is aged 87 years and is currently afflicted with Alzheimer’s Dementia with Parkinsonism and hypertensive heart Disease ( HFPEF), which has been confirmed by the family physician , Doctor Munyendo W Alex, as per a medical report exhibited as annexure CP-3. It is further averred that the ward has deteriorating memory, speech and general cognitive function and is in constant need of care and attention thus rendering him unable to manage is own affairs and properties hence the need for appointment of the petitioner as the manager of the ward’s estate. 4.The petitioner has deposed that he has duly obtained the consent of his siblings. Further that the ward is married to one FM whom despite several messages having been sent to her, opted not to cooperate with the former in regard to Bungoma High Court Succession Cause No 12 of 2019 whose subject matter is the distribution of the estate of the petitioner’s paternal grandfather one HWN alias HN and that the Ward is one of the administrators of the said estate. 5.The petitioner maintains that his appointment as the manager of the ward would ensure that the interest of the ward in the estate of his father HWNN alias HN are safeguarded. 6.It is noteworthy that despite this court having directed the petitioner to serve his step mother with his petition and obtain her consent, the petitioner opted to ignore the courts directions. Analysis and determination 7.I have considered the application herein, the three affidavits sworn in support thereof and the singular issue that raises it’s head for determination is whether the petition herein is merited. 8.The definition section 2 of the Mental Health Act defines a “person with mental illness” means a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes—(a)a person diagnosed with alcohol or substance use disorder; and(b)a person with suicidal ideation or behaviour; 9.The petitioner has invoked the jurisdiction of this court under inter alia the provisions of sections 26, 27 and 28 of the Mental Health Act which provide as hereunder:“ 26.Application for administration(1)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. 27.Orders of the Court(1)The court may make such an order as it considers necessary for the administration and management of the estate of any person with mental illness including -(a)an order making provision for the maintenance of the person;(b)an order making provision for the maintenance of members of the person’s immediate family who are dependent upon the person; and(c)an order making provision for the payment of the person’s debts.(2)The court may appoint a manager of the estate of a person with mental illness for the purposes of safeguarding the property of that person.(3)The court may for the purposes of section (1), appoint the supporter or the representative of the person with mental illness as the manager of the estate of the person under subsection (2).(4)The court shall, by notice in the Gazette, inform the public of the appointment of a person as the manager of the estate of a person who is suffering from mental illness.(5)Within fourteen days of the Gazette Notice under subsection (4), any person may lodge an objection to the person appointed as manager. 28.Duties of a manager(1)Where a manager is appointed under this Part, the court may, upon considering the nature of the property whether movable or immovable, and subject to subsection (2), make such orders as the court may consider necessary for the management of the estate by the manager.(2)The manager shall not, without the approval of the court—(a)mortgage, charge or transfer by sale, gift, surrender or exchange any immovable property of which the estate may consist;(b)lease any such property for a term exceeding five years; or(c)invest in any securities other than those authorized under the Trustee Act.(3)A manager shall not invest any funds or property belonging to the estate managed under this section—(a)in any company or undertaking in which the manager has an interest; or(b)in the purchase of immovable property under the authority of section 4 (1) (d) of the Trustee Act without prior consent of the court.(4)A manager shall perform the manager’s duty under this Act responsibly taking into account the best interests of the estate of the person who is suffering from mental illness.(5)Every conveyance or other instrument made pursuant to an order of the court under this Part shall be valid.” 10.The petitioner has exhibited an uncertified report dated 5th June 2025 authored by Dr Munyendo W Alex reveals that the ward has been attended at Maxicare Sunrise Hospital since the year 2020 and that during his last review in May 2025 a diagnosis of Alzheimer’s Dementia with Parkinsonism and hypertensive heart disease ( HFpEF) was made and the ward was put on medication while strong social support was recommended. This report fails short of the requirements of section 26 (2) ( c) of the Mental Health Act. 11.The priority in making an application under the Mental Health Act in respect of the estate of a person suffering from mental illness is given to a supporter and in the absence of a supporter to a representative. The petitioner has not disclosed whether the ward had appointed a supporter wherefore he filed this petition as a representative. The definition section 2 of the Mental Health Act defines a representative as follows:“(a)a spouse of that person, or if unable or unwilling(b)the child of that person, where such child has attained the age of eighteen years, or if unable or unwilling;(c)a parent of that person, or if unable or unwilling;(d)a relative of that person, or if unable or unwilling; or(e)a person under whose care or charge the person with mental illness is; 12.Whereas the ward is married to one FM, the Petitioner has not demonstrated that the said spouse of the ward has declined to apply for appointment as a manager of her husband’s affairs. It is evident that the petitioner has all along been reluctant to even disclose the identity of the ward’s spouse and only did so after having been pressured by this court. 13.Whereas this court had directed that the said spouse be served with this petition, no proof of service has been adduced as at the time of reserving the ruling. This court is alive to the fact that a spouse is better placed to be knowledgeable of the ward’s current mental state and his daily needs as compared to the petitioner who resides far off in Australia. 14.I note with concern that the petitioner has deliberately failed to comply with the provisions of section 26 (2) (b) of the Mental Health Act as regards the property of he ward. In lie thereof, the petitioner has troubled himself with providing an inventory of the properties and a list of heirs/heiresses of the estate of his grandfather one HWN alias HN. Whereas this court has taken note of the ward’s interest in the management and distribution of his father’s estate, the subject of this petition is the ward and his estate and not the ward’s father’s estate. In any event any substitution of the ward as an administrator of the estate of his father HWN alias HN is a matter extraneous to this petition and the same will be ably handled by the court seized of the Succession Cause No 12 of 2019 in accordance with the provision of section 47of the Law of Succession Act, Chapter 160 Laws of Kenya. 15.On the balance I do find that the ward has no known property to warrant an appointment of a manager to manage his affairs and estate The petitioner and his siblings do not need any order of this court for purposes of maintaining their father, the ward. 16.The petition dated 11th November 2025 is thus devoid of merit and is hereby dismissed with no orders as to costs. DELIVERED, SIGNED AND DATED AT MILIMANI THIS 15TH DAY OF JUNE 2026.M. S. SHARIFFJUDGE