https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6571

In re DW (Miscellaneous Case E144 of 2026) [2026] KEHC 6571 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEHC 6571 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Miscellaneous Case E144 of 2026 CJ Kendagor, J May 6, 2026 IN THE MATTER OF THE MENTAL HEALTH ACT CAP. 248 LAWS OF KENYA In the matter of DW - A PERSON SUFFERING FROM MENTAL AND PHYSICAL INCAPACITY In the matter of LOW Petitioner Judgment 1.The Petitioner filed a Petition dated 15th April, 2026 seeking the following orders:a.That this honourable Court be pleased to order the Subject, DW be assessed by a qualified medical practitioner or neurologist to determine her mental capacity and ability to manage her affairs.b.That this honourable Court be pleased to declare and adjudge DW to be a person suffering from a mental disorder within the meaning of Section 26 of the Mental Health Act (Cap. 248) Laws of Kenya, and incapable of managing her affairs;c.That this honourable Court be pleased to appoint LOW as the legal guardian and manager of the estate of DW pursuant to the provisions of the Mental Health Act;d.That upon such appointment, the LOW, as guardian and manager of the estate of the Subject, be authorized to access, operate and manage the Subject’s bank accounts and financial resources solely for purposes of her care, treatment and wellbeing;e.That the appointed guardian and manager be authorized to make medical, financial and administrative decisions on behalf of the Subject in her best interests;f.That this Court may grant any further orders as it may deem just and expedient for the protection of the Subject;g.The costs of this Petition be provided for. 2.At the hearing of the Petition, the Petitioner informed the Court that she is the daughter of DW. She expressed that her intention in seeking guardianship is to secure her mother’s interests. 3.The Petition cites medical evidence from the Medical Doctors who have treated DW, showing that she is not in a proper state to handle her own affairs or personal welfare. Her condition follows a cerebrovascular accident (stroke) suffered on 11th December, 2025. As a result, she developed right-sided hemiplegia and significant speech impairment, characterized by difficulty in articulation and occasional slurring of speech, which has severely affected her ability to communicate effectively. 4.FM, a caregiver, gave evidence at the hearing that DW has been undergoing rehabilitation. She stated that the Subject requires support to manage her own affairs and that she has been engaged by the family to assist with daily chores, feeding and exercises. The caregiver affirmed that the Subject is receiving appropriate care. 5.Treatment notes from Sema Homecare were produced before the Court and duly received as evidence. The documents confirm DW’s medical condition. The Primary Care Physician at the Home Care further confirmed that the Subject has been under the Petitioner’s care. 6.DW was presented before the Court; she exhibited signs of being unwell. 7.The Petition was further supported by the testimonies of JW, SW, and AW, who are the Petitioner’s siblings. They all affirmed the Petitioner’s suitability to serve as guardian and manager. 8.The Court has considered the Petition and the evidence on record. The issues for determination before this Court are as follows:i.Whether the Subject should be declared as suffering from mental illness;ii.Whether the applicant should be appointed guardian and manager of the estate of the Subject as prayed. Analysis: 9.The Petitioner, in her Petition, seeks to be appointed as guardian and manager of the affairs and estate of DW, as owing to her condition, she can no longer manage her affairs and those of her estate. Whether the Subject should be declared as suffering from mental illness pursuant to the Mental Health Act, Cap 248 10.The Mental Health Act provides for the care of persons who are suffering from mental illness, custody of their persons and for the management of the estate of such persons. Section 2 of the Act defines “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.” 11.The Court has noted the evidence and medical documentation presented in the Petition and observed the Subject during the examination in Court. The Court is satisfied on the evidence presented that the Subject is a person suffering from a mental illness and lacks the capacity to manage her own affairs. Whether the Petitioner should be appointed as guardian and manager to the Subject 12.The Petitioner highlighted the urgency of the matter, noting that the Subject requires funds for medical treatment and home care services. She stated that the funds to be accessed are from her pension, which is in her bank account. 13.In re Application on Behalf of Peter Ng'ang'a Muturi (Petition E072 of 2024) [2024] KEHC 10407 (KLR) (Family) (23 August 2024) (Judgment) Riechi J held: “This court has power to appoint guardian and managers of the estate while the court has discretion as to who to appoint. The criteria for selection is based on proximity of the applicant to the Subject.” 14.The Court is satisfied of the close relation of the Applicant to the Subject as her daughter, and that the prayers sought in this Petition are deserved and should be granted. Orders: 15.Accordingly, for the reasons set out above, the Petition dated 15th April, 2026 is allowed in the following terms;a.The Subject DW is declared to be a person suffering from a mental illness under the Mental Health Act.b.The Court appoints the Petitioner, LOW, as the guardian and manager in respect of DW and grants her custody, care, and management of the Subject and his estate.c.As the manager of the estate of the Subject, she is authorized to run her affairs, including but not limited to operating her bank accounts and her investment portfolios, as well as executing legally binding instruments on her behalf.d.LOW shall render semi-annually an account of dealings therewith to the Court and the Public Trustee, being a full and accurate account of the dealings with the estate of the Subject herein for further orders, as may be appropriate.e.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 6TH DAY OF MAY, 2026.………………………..C. KENDAGORJUDGEIn the presence of:Court Assistant: Noel