https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9606

In re JM (Family Miscellaneous Application E007 of 2026) [2026] KEHC 9606 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9606 (KLR) Republic of Kenya In the High Court at Kisumu Family Miscellaneous Application E007 of 2026 A Mabeya, J July 3, 2026 IN THE MATTER OF SECTION 26, 27 AND 28 OF THE MENTAL HEALTH ACT AND IN THE MATTER OF JM - SUBJECT AND IN THE MATTER OF AN APPLICATION BY MAM Ruling 1.By a Petition dated 2/3/2026, MAM (‘petitioner’), petitioned this Court to declare JM (‘the subject’) a person suffering from a mental disorder and consequently appoint her his legal guardian. 2.She supported her petition by her Affidavit sworn on 2/3/2026. She attended Court on 16/6/2026 and testified on oath. She adopted the contents of her aforesaid supporting affidavit and exhibits produced thereto. 3.It was her case that she was the spouse to the subject having been married in 1985 and were blessed with children. That in or about 2023, the subject was diagonized with Type 2 Diabetes Mellitus and Systemic Hypertension. That recently, the subject was diagonized and found to be unable to function independently and mentally coordinate properly. That in the premises, the prayers in the Petition should be granted. 4.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. 5.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. 6.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.” 7.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.” 8.In the present case, there is evidence of the illness of the subject. According to the Medical Report dated 13/2/2026 by Dr. Ocean Kibet, currently the subject is unable to talk or write due to stroke-related neurological impairment. That the condition has significantly affected the subject’s ability to communicate and perform daily activities independently. The application was consented to by DWM, DM, JOM, WGM and JPM, all being the children of the subject. 9.Considering all the foregoing, this Court is satisfied that the petitioner has satisfied the provisions of section 26 of the Mental Act and the Court allows the petition as prayed.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF JULY, 2026.A. MABEYA, FCI ArbJUDGE