https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6035

In re EOO (Subject) (Miscellaneous Application E009 of 2026) [2026] KEHC 6035 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEHC 6035 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Application E009 of 2026 A Mabeya, J May 6, 2026 IN THE MATTER OF SECTION 26 OF THE MENTAL HEALTH ACT AND IN THE MATTER OF EOO - SUBJECT AND IN THE MATTER OF AN APPLICATION BY RAO & BCOO Judgment 1.By a Petition dated 10/4/2026, the petitioners invoked sections 26 of the Mental Health Act, Cap 248 Laws of Kenya and sought a declaration that EOO (“the subject”) is a person suffering from mental disorder, that they be made his legal guardian and that they be granted management orders and be authorized to undertake all legal functions with regards to the financial affairs, interests and welfare of the subject. 2.The Petition was anchored on the grounds set out in its body as well as the supporting affidavit jointly sworn by B C O O & R A O on the 10/4/2026. 3.The matter proceeded by way of viva voce evidence in which the 1st Petitioner, RAO was the sole witness. It was her testimony that she was the wife of the subject and a mother to their 3 children including the 2nd Petitioner. She adopted her supporting affidavit of 10/4/2026 as her evidence in chief and went on to testify that the subject was diagnosed with dementia with cognitive impairment since 2020 and that his mental condition had deteriorated as his age advanced. 4.That as a result, the subject was no longer able to execute any document, manage, maintain and take care of himself. That the subject, who is now 82 years old, was on the 23/1/2026 again accessed and diagnosed with dementia which he had been living with since the year 2020. 5.That as a family, they had realized that strangers had fraudulently transferred and registered themselves as owners of several parcels of land belonging to the subject and as such, there was need for them to be authorized to undertake all legal functions with regards to the execution of documents, financial affairs, interests and welfare of the subject. 6.The main issues for determination are Whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248 and Whether the applicant should be appointed as guardian to the subject. 7.The Mental Health Act provides for the care of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons. 8.Section 2 of the Act defines “person suffering from mental disorder” as follows: -“person suffering from mental disorder” means a person who has been found to be so suffering under this Act and includes a person diagnosed as psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse.” 9.Section 26 provides for custody, management and guardianship“ 1.The Court may make orders-a.For the management of the estate of any person suffering from mental disorder; andb.For the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person. 2.Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate of the guardian of any such person. 3.Where upon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think fit for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.” 10.According to the medical report by Dr. Jules Fidele Nshimiylmana, a neurologist practicing at The Karen Hospital, dated 23/1/2026, the subject is suffering from impaired short-term memory and reduced executive functioning with difficulties forming new memories. The medical report indicates that the subject has been unwell since 2020 and that he was demonstrating chronic structural brain changes consistent with a neurocognitive disorder. 11.It is apparent from that report that the subject is suffering from a mental disorder in terms of section 2 of the Mental Act and further a medical condition contemplated under section 26 of the Act and is thus incapable of managing his own affairs. 12.Section 26 of the Mental Health Act gives the Court the power to make orders regarding management of the estate of any person suffering from mental disorder to any relative or any person suitable but giving preference to a relative. 13.The petitioners stated that they are the wife and son of the subject. That they desire to be appointed his guardian so that they can be able to manage his general affairs. 14.There being no objection to the application and the course of the application being well supported as required under the law, it is my considered view that the prayer for appointment of guardian is well grounded and merited. 15.Consequently, the Petition dated 10/4/2026 is allowed in the following terms: -a.That the subject EOO is hereby declared mentally incapacitated under Section 26 of the Mental Health Act.b.That the petitioners, B C O O & R A O are hereby appointed the guardian of the subject to manage his affairs.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 6TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE