https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6473

In re FAH (Miscellaneous Application E419 of 2025) [2026] KEHC 6473 (KLR) (Family) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6473 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Miscellaneous Application E419 of 2025 H Namisi, J May 14, 2026 IN THE MATTER OF FAH AND IN THE MATTER OF SECTIONS 26,27,28 AND 29 OF THE MENTAL HEALTH ACT, CHAPTER 248 OF THE LAWS OF KENYA AND IN THE MATTER OF A PETITION FOR GUARDIANSHIP OF A PERSON SUFFERING FROM MENTAL INCAPACITY Between ZAH Petitioner and FAH Ward Judgment 1.The matter before the Court is an Amended Petition dated 27 April 2026, brought pursuant to Sections 26, 27, 28, and 29 of the Mental Health Act. The Petitioner seeks the intervention of the Court to be appointed as the legal guardian and manager of the estate of her biological sister, FAH (the Ward). 2.The Petitioner requests the Court to adjudge the Ward as a person suffering from a mental disorder and to authorize the Petitioner to access and operate the Ward’s bank account at the Kenya Commercial Bank, Sarit Centre Branch (Account Number 12XXXX). The fundamental purpose of this Petition is to secure the release of funds to facilitate an urgent and vital surgical operation required by the Ward. 3.The Court has meticulously evaluated the pleadings, the Supporting Affidavit sworn by the Petitioner on the 27 April 2026, and the oral testimonies adduced during the hearing. 4.The Petitioner testified that the Ward, a 61-year-old retired businesswoman, suffered a catastrophic middle cerebral artery stroke on 18 October 2024. This medical emergency necessitated three brain surgeries, resulting in the implantation of a titanium cranial plate. The Petitioner confirmed that the Ward is currently bedridden, paralysed, and completely dependent on round-the-clock nursing care provided at the Petitioner's residence. The Ward currently requires a vital surgical procedure to replace her skull, but the funds necessary for this operation are locked in the Ward's bank account, which cannot be accessed due to the expiration of the Ward's ATM card and her total incapacity to execute financial instructions. 5.Expert medical evidence was provided by Dr. Lawrence Ochieng Obonyo, a Consultant Medical Practitioner with fifteen years of clinical experience. Dr. Obonyo testified that the middle cerebral artery stroke inflicted irreversible brain damage on the Ward, directly affecting the regions of the brain that govern speech, complex thought, and motor function. The clinical assessment revealed a Glasgow Coma Scale (GCS) score of 8/15, indicating that the Ward is semi-conscious. Dr. Obonyo concluded that the Ward has lost all verbal and motor power, requires assisted feeding and breathing, and exhibits total mental incapacity, rendering her unable to carry out any cognitive functions. 6.To satisfy the statutory requirement for familial consensus, the Petitioner filed sworn affidavits of consent from the Ward's sole biological son, Jibril Hussein Mohammed, and the Ward's biological brother, Yusuf Ahmed Hassan. Jibril Hussein Mohammed, who resides with the Petitioner and the Ward, appeared before the Court to confirm his consent, noting that he is unemployed and suffers from a medical condition himself, rendering him unable to assume the role of guardian. Both relatives unequivocally consented to the Petitioner's appointment to manage the specified bank account for the Ward's medical treatment. Analysis & Determination 7.The resolution of this Petition rests upon the determination of 3 primary issues:i.Whether the Ward suffers from a mental disorder that renders her incapable of managing her affairs.ii.Whether the Petitioner is a suitable person to be appointed as the legal guardian and manager of the Ward's estate, and whether such appointment serves the best interests of the Ward.iii.What specific managerial powers and statutory safeguards ought to be ordered by the Court to protect the Ward's estate. 8.The jurisdiction of the High Court to intervene in the affairs of incapacitated adults is anchored in the parens patriae doctrine, codified under Part XII of the Mental Health Act. The law places a premium on the rights, dignity, and best interests of persons suffering from mental illnesses, requiring courts to act with meticulous care when restricting legal capacity. 9.The High Court has crystallized the threshold for such interventions. In the persuasive authority of In re CWN eKLR, the Court established a stringent three-pronged test that a petitioner must satisfy: first, that the patient suffers from a mental disorder; second, that the patient is incapable of managing their affairs; and third, that the Application is in the patient's best interests. 10.Section 26 of the Mental Health Act empowers the Court to make orders for the management of the estate and the guardianship of a person suffering from a mental disorder. The Supreme Court, in Petition No. 10 (E013) of 2022, MMG vs. The Tribunal, provided seminal guidance on defining mental incapacity. Adopting principles from comparative jurisprudence, the Supreme Court emphasized that incapacity must be established through qualified medical diagnosis demonstrating that an impairment of the mind or brain renders the individual unable to make specific decisions for themselves. 11.The burden of proof lies with the Petitioner to demonstrate this functional incapacity through unassailable medical evidence, a standard strictly enforced in cases such as In re KMM (Ward) (Petition E007 of 2025) KEHC 7206 (KLR). The evidentiary record before the Court leaves no room for ambiguity. Dr. Obonyo's expert testimony confirms that the Ward suffered irreversible brain damage resulting from a severe cerebrovascular accident. A Glasgow Coma Scale of 8/15, coupled with a total loss of verbal and motor power, irrefutably establishes that the Ward lacks the cognitive agency to comprehend, make, or communicate decisions regarding her personal or financial affairs. The Court is, therefore, satisfied that the first two limbs of the In re CWN test have been met. The Ward is a person suffering from a mental disorder under the Act, rendering her wholly incapable of managing her affairs. 12.The third limb of the jurisprudential test requires the Court to ascertain whether the appointment of the Petitioner serves the best interests of the Ward. The ‘best interests’ principle dictates that any intervention must prioritize the welfare, medical needs, and dignity of the incapacitated person, a standard applied rigorously by the Court in recent determinations such as In re ADH KEHC 14647 and In re PPNK (Miscellaneous Application E020 of 2025) KEHC 7494 (KLR). 13.The evidence demonstrates that the Petitioner has assumed the role of primary caregiver since the onset of the Ward's illness, integrating the Ward into her household and facilitating total primary nursing care. Furthermore, the application is supported by the unanimous consent of the Ward's immediate surviving family members, namely her adult son and her brother. The Petitioner, being gainfully employed and having demonstrated unwavering familial commitment, is eminently qualified for this fiduciary role. The urgent necessity to access funds for a life-saving surgical operation makes the appointment not merely suitable, but absolutely imperative for the preservation of the Ward's life and welfare. 14.Having established the necessity of the appointment, the Court turns to the scope of the managerial powers. Section 28 of the Act grants the Court the discretion to authorize a manager to execute instruments and access funds for the maintenance and medical care of the incapacitated person. The Court routinely grants targeted access to bank accounts to facilitate urgent medical care, as demonstrated in In re KMM KEHC 7206 (KLR) and In re NMM (Petition E011 of 2025) KEHC 7398 (KLR). Accordingly, the Court will authorize the Petitioner to operate the specified Kenya Commercial Bank account solely for the Ward's medical treatment and upkeep. 15.However, the Court must guard against the unfettered alienation of the Ward's estate. The Amended Petition sought blanket powers to sell, dispose of, or mortgage properties and motor vehicles. Section 28(2) of the Act expressly prohibits a manager from mortgaging, selling, or disposing of immovable property without the prior approval of the Court. Consistent with the ruling in In re TWM (Mental Patient) eKLR, where the Court declined to grant broad estate management powers without specific justification, this Court will restrict the Petitioner from alienating any immovable property or motor vehicles without a subsequent, specific application to this Court. 16.To ensure fiduciary accountability, the law imposes strict post-appointment obligations. Section 33 mandates that a manager must deliver a comprehensive inventory of the property to the Court and the Public Trustee within six months of appointment. Furthermore, Section 27(4) of the Act introduces a mandatory requirement for the publication of a Gazette Notice within 30 days of the appointment to inform the public and allow for objections. Contemporary jurisprudence, including In re NNN (Miscellaneous Civil Application E137 of 2023) KEHC 24899 (KLR) and In re M.A.O. eKLR, strictly enforces these statutory safeguards, and this Court shall incorporate them into its final decrees. 17.The Court, having assumed its protective jurisdiction and having analysed the unassailable medical evidence alongside the applicable statutory and jurisprudential framework, finds that the Amended Petition dated 27 April 2026 is merited. The law must empower the Petitioner to execute her fiduciary duty to preserve the life and dignity of the Ward, whilst maintaining rigorous judicial oversight to protect the estate. 18.Consequently, the Court issues the following Orders:i.F.A.H, (the Ward) is hereby adjudged and declared to be a person suffering from a mental disorder within the meaning of Section 26 of the Mental Health Act, rendering her totally incapable of managing her personal, medical, and financial affairs.ii.The Petitioner is hereby appointed under Sections 27 and 28 of the Mental Health Act as the Legal Guardian of the Ward and the Manager of the Estate of the Ward, granting her full custody, care, and management of the Ward's personal and medical affairs.iii.As the appointed Manager, the Petitioner is expressly authorized to access, operate, and manage the Ward's funds held at the Kenya Commercial Bank, Sarit Center Branch,under Account Number 12XXXX. The funds accessed from the aforementioned account shall be utilized strictly and exclusively for the medical treatment, surgery, nursing care, and daily upkeep of the Ward.iv.Pursuant to Section 28(2) of the Mental Health Act, the Manager is prohibited from selling, disposing of, leasing, transferring, assigning, or mortgaging any immovable property or motor vehicles registered in the Ward's name without first filing a formal application and obtaining the express sanction of this Court.v.Pursuant to Section 33 of the Mental Health Act, the Manager shall deliver to this Court and to the Public Trustee, within six (6) months from the date of this Judgment, a comprehensive inventory of the property, funds, and debts belonging to the Ward.vi.In accordance with Section 27(4) of the Mental Health Act, the Manager shall cause the publication of a notice in the Kenya Gazette within 30 days of this Judgment, informing the public of her appointment as the Manager of the Estate of the Ward.vii.There shall be no order as to costs. Costs incidental to the extraction of these orders and the gazettement shall be met out of the Estate of the Ward.viii.This matter shall be mentioned before the Deputy Registrar on 29 July 2026 to confirm compliance with the Gazettement and the filing of the preliminary inventory. DATED AND DELIVERED AT NAIROBI THIS 14 DAY OF MAY 2026HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Court Assistant: Lucy Mwangi