https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11598

In re EJT (Subject) (Family Miscellaneous Civil Case E026 of 2026) [2026] KEHC 11598 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 11598 (KLR) Republic of Kenya In the High Court at Eldoret Family Miscellaneous Civil Case E026 of 2026 AK Ndung'u, J July 28, 2026 IN THE MATTER OF THE MENTAL HEALTH ACT, CAP 248, LAWS OF KENYA AND IN THE MATTER OF EJT (THE SUBJECT) A PERSON SUFFERING FROM MENTAL DISORDER In the matter of FKT Petitioner Ruling 1.Before Court are chamber summons dated 7th July 2026 brought under Section 26 of the Mental Health Act, Cap 248 and all enabling provisions of the law. The Applicant seeks the following orders:a.Spentb.Spent.c.That this Honourable Court be pleased to issue an interim order, pending the hearing and determination of the Petition, authorizing the Petitioner/Applicant to access, operate, and withdraw funds held at Absa Bank PLC Eldoret Branch A/C 00xxxx53 in the name of the Subject, EJT, specifically for the purpose of:i.Investing funds in prudent financial instruments such as Treasury Bills and Bonds for the benefit and preservation of the value Subject’s estate.ii.Paying for the Subject's urgent medical expenses, living expenses, and other necessary costs for her welfare and maintenance.d.That pending the hearing and determination of the Petition, this Honourable Court do issue an order directing the Co-operative Bank to release to the Petitioner/Applicant the full particulars of the Subject's account(s) held at their institution, including the account number(s) and balance(s), to facilitate the effective management of the estate.e.That this Honourable Court be pleased to grant any other or further orders as it may deem fit and just in the circumstances.f.That the costs of this Application be provided for. 2.The application is based on the following grounds:a.That the Petitioner/Applicant has filed a Petition herein seeking to be appointed as the Guardian and Manager of the Subject's estate.b.That the Subject, EJT, Is Suffering from Dementia, a mental disorder rendering her incapable of managing her personal and financial affairs, as confirmed by two independent medical reports.c.That the Petitioner/Applicant is the son of the Subject and is a fit and proper person to be appointed as her Guardian and Manager, with the best interests of the Subject at heart.d.That the Petitioner/Applicant is scheduled to travel to the United States of America on 24th July 2026 and has limited time in the country, making it imperative That this matter be heard urgently and interim orders granted to safeguard the Subject's assets and welfare.e.That all the other children of the Subject, namely NKT (in Finland), GKT (in Germany), And WKT (in the USA), have been informed of this Application and have no objection to the Petitioner/Applicant being appointed as the Guardian and Manager of the Subject's Estate. They are available to participate in virtual court proceedings if called upon.f.That the Subject has funds held in bank accounts, including at Absa Bank PLC and Co-operative Bank, which require immediate investment in instruments like Treasury Bills and Bonds to prevent wastage and generate income for her upkeep.g.That the Petitioner/Applicant is unable to manage the Subject's estate effectively or make necessary investments without the authority of this Court to access the bank accounts and obtain full details of the accounts.h.That the orders sought are for the benefit and protection of the Subject and to prevent the dissipation of her assets.i.That it is in the best interest of the Subject That these interim orders are granted to ensure her continued care and medical treatment. 3.The Applicant FKT swore a Supporting Affidavit which averments contained substantially mirror the grounds set out on the face of the application and need not be restated. 5.I have carefully considered the Chamber Summons dated 7th July 2026, the grounds upon which it is premised, the Supporting Affidavit sworn by the Applicant, the Petition filed contemporaneously therewith and the annexed medical reports. 6.The jurisdiction of this Court is donated by Sections 26 and 27 of the Mental Health Act, Cap 248, Laws of Kenya. Section 26 empowers the Court, upon being satisfied that a person is suffering from mental disorder and is incapable of managing his or her affairs, to make such orders as may be necessary for the management of the estate of such person and for his or her proper guardianship. The jurisdiction is protective rather than punitive. The Court assumes the role of parens patriae and is enjoined to ensure that every order made serves only the best interests of the subject while preserving the estate from waste, loss or dissipation. 7.The principles governing the exercise of this jurisdiction are now well settled. The paramount consideration is the welfare, dignity and best interests of the person suffering from mental disorder. Equally important is the preservation of the subject's estate so that it remains available for the person's maintenance, treatment and future needs. A manager appointed under the Act does not become the beneficial owner of the estate but merely assumes fiduciary responsibilities akin to those of a trustee. Consequently, every act undertaken in relation to the estate must be demonstrably necessary, prudent, transparent and capable of judicial supervision. 8.The courts have consistently held that powers conferred upon a manager of the estate of a person suffering from mental disorder must be exercised cautiously and only to the extent necessary for the preservation of the estate and the welfare of the subject. The Court must therefore avoid granting unrestricted authority capable of exposing the estate to speculative ventures or unnecessary risk. Judicial authorization must be sufficiently specific to enable accountability and effective supervision. 9.From the material before Court, there is prima facie evidence that the Subject suffers from dementia and is presently incapable of managing her financial and personal affairs. The medical reports exhibited support that conclusion. There is equally evidence that the Applicant is one of the Subject's sons and that the other children have been notified of the proceedings and do not object to the interim relief sought. 10.The Court is further persuaded that there exists an element of urgency. The Subject requires continuous medical attention and maintenance, while the Applicant has deponed that he is scheduled to travel outside the jurisdiction in the near future. Pending the hearing of the substantive Petition, it is therefore necessary to make limited interim orders that will secure the Subject's welfare and preserve her estate. 11.The Court, however, is unable to grant the prayer seeking authority to invest the Subject's funds in unspecified "prudent financial instruments." Although Treasury Bills and Treasury Bonds issued by the Government of Kenya are generally regarded as secure investment vehicles, the prayer as framed would leave the choice, amount, duration and manner of investment entirely to the discretion of the Applicant. Such a blanket authorization would amount to an abdication of the Court's supervisory role under the Mental Health Act. 12.A manager appointed under the Act is accountable to the Court. The Court must therefore ensure that any investment authorized is sufficiently defined and limited so that it remains capable of subsequent scrutiny. Open-ended authority to invest in unspecified financial products would expose the Subject's estate to unnecessary risk and would make effective judicial oversight practically impossible. 13.The Court therefore finds that, at this interlocutory stage, the appropriate course is to permit access to the Subject's funds strictly for purposes of meeting her medical expenses, nursing care, accommodation, maintenance and other necessary expenses directly relating to her welfare. Such authority is consistent with the protective objects of Sections 26 and 27 of the Mental Health Act. 14.With respect to the prayer directed at the Co-operative Bank, the Court is satisfied that disclosure of the Subject's account particulars is necessary to enable the Court and the proposed manager ascertain the full extent of the Subject's estate. Such disclosure is intended solely for purposes of administration under the Mental Health Act and shall not authorize withdrawals from any such accounts without further orders of this Court or subsequent authority granted upon appointment of the manager. 15.The Court reiterates that these orders are purely interim in nature. They neither determine the substantive Petition nor amount to a final appointment of the Applicant as manager of the estate or guardian of the Subject. The Applicant shall remain accountable to this Court for every transaction undertaken pursuant to these interim orders and shall maintain proper records of all expenditures made on behalf of the Subject. 16.Accordingly, the Chamber Summons dated 7th July 2026 succeeds only to the extent set out below. Ordersa.Pending the hearing and determination of the Petition, the Applicant is hereby authorized to access and operate the Subject's Account No. 00xxxx53 held at Absa Bank PLC, Eldoret Branch, strictly for the purposes of—i.Paying the Subject's medical expenses;ii.Meeting the Subject's nursing, caregiving, accommodation, maintenance and other reasonable living expenses;iii.Paying any expenses reasonably necessary for the preservation, protection and administration of the Subject's estate.b.The Co-operative Bank of Kenya shall, within fourteen (14) days of service of this order, disclose to the Applicant and file in Court the particulars of all accounts held by the Subject, including the account numbers, account balances and the nature of the accounts, solely for purposes of facilitating the administration and preservation of the Subject's estate.c.The Applicant shall maintain accurate accounts of all monies withdrawn, expended pursuant to these orders and shall file a statement of account before this Court within ninety (90) days or such earlier date as the Court may direct.d.The prayer to apply monies in investment ventures is declined to await the ventilation of the Petition.e.These orders shall remain in force pending the hearing and determination of the substantive Petition or until further orders of this Court.f.Costs of the application shall abide the outcome of the Petition.It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JULY 2026A.K. NDUNG’UJUDGE