https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10959

In re FS (Miscellaneous Civil Application E011 of 2022) [2026] KEHC 10959 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10959 (KLR) Republic of Kenya In the High Court at Kajiado Miscellaneous Civil Application E011 of 2022 CW Meoli, J July 16, 2026 IN THE MATTER OF AN APPLICATION FOR CUSTODY MANAGEMENT AND GUARDIANSHIP AND THE MENTAL HEALTH ACT AND IN THE MATTER OF F.S. (A PERSON SUFFERING FROM MENTAL HEALTH DISORDER) In the matter of EMS Petitioner Judgment 1.The subject of the Petition dated 24.02.2022 and brought by EWS (the Petitioner) is F.S., a male adult. The petition is supported by the affidavits of the Petitioner. The Petitioner is the mother of the subject, and by the petition seeks a declaration that F.S is a person suffering from a mental disorder pursuant to the Mental Health Act and, to be appointed as his legal guardian. 2.The Petitioner stated that the subject resides in Isinya, Kajiado County; that in or about 2014, F.S was examined at Kajiado District Hospital by Dr. Lincoln Gitau and diagnosed with a mental illness; that his condition has progressively deteriorated, particularly affecting his memory, judgment, ability to co-ordinate, and capacity to perform ordinary day-to-day activities independently. Leading to a diagnosis on 4th February 2022, of disorganized schizophrenia and referral to psychiatric treatment, and on further evaluation at Mathari National Teaching and Referral Hospital, he was diagnosed with schizophrenia accompanied by a drug use disorder. Thus, the patient suffers from a serious mental illness requiring continuous medical care and supervision. 3.The Petitioner asserted that due to his mental condition, F.S is unable to comprehend his surroundings, care for himself, or make rational decisions concerning his welfare and property. She states that he requires a capable guardian to provide daily care, mental support, and protection as he has become permanently incapacitated. She further explains that she has personally undertaken responsibility for his welfare by ensuring he receives medical treatment and by managing his day-to-day needs. 4.Additionally, the petitioner stated that because the patient is incapable of managing his estate, she has assumed responsibility for his property in order to safeguard his interests. She maintains that it is in the patient's best interests that the court formally appoint her as his guardian and manager of his estate so that she can manage his affairs, although no express prayer seeking appointment as manager is included in the petition. 5.The Petitioner by her affidavit reiterated the foregoing adding that she had the authority of her family to act on behalf of the subject who is the registered owner of Title No. KJD/Kaputiei North/xxxx part of which was affected by a KETRACO wayleave corridor, entitling the subject to compensation. However, owing to his mental incapacity, he is unable to transact or pursue the compensation process, which has consequently stalled. She therefore urged the court to appoint her as his guardian to enable her to safeguard his welfare, manage his property, and pursue the compensation process on his behalf. 6.The Petitioner exhibited in her further affidavit an updated medical report from Kajiado County Referral Hospital confirming the subject’s ongoing treatment, while reiterating his previous medical diagnosis. The medical report, prepared by Jane Wanzala, a Mental Health and Psychiatric Practitioner at Kajiado County Referral Hospital, indicates that the subject has been under psychiatric care since November 2018 following referral from the medical outpatient clinic. The report notes that the subject suffers from impaired concentration, poor memory, visual and auditory hallucinations, confabulations, agitation, and recurrent episodes of aggression, requiring close supervision. 7.The report further indicates that F.S lacks the mental capacity to make rational decisions, suffers from schizophrenia and substance use disorder, hence requires continuous medication, psychotherapy and psychosocial support, being incapable of independently managing his personal and financial affairs. On the basis of the report, the Petitioner reiterated that the appointment of a guardian was necessary to safeguard the subject’s welfare and protect his proprietary interests. 8.The petition was heard through viva voce evidence on 6.07.2022. At the hearing, the Petitioner adopted her witness statement dated 24th February 2022 as part of her evidence-in-chief and reiterated the material in her petition and supporting affidavits. She also highlighted the pending compensation claim in respect of the subject’s land parcel and his inability to follow up the process due to his mental incapacity. 9.Dr. Jane Nanzala, a psychiatric nursing professional holding a Bachelor of Science degree in Psychiatry from Umma University, and practicing at the Kajiado County referral Hospital also testified. She adopted her witness statement and her medical report as her evidence-in-chief. 10.The sum total of her evidence was that she has been involved in the treatment of the subject, F.S, since 2018, following his referral from another health facility; that the subject has been managed both as an outpatient at Kajiado County Referral Hospital and as an inpatient whenever his condition deteriorated; that the subject suffers from a form of schizophrenia which impairs his thinking capacity and judgment and has been continuously managed by a multidisciplinary psychiatric team; and that the subject requires continuous psychiatric treatment and strict adherence to medication, failing which he experiences recurrent relapses, during which the subject been escorted to hospital by police officers for treatment on several occasions. 11.The witness produced the medical reports filed in court as exhibits and testified that the subject is prone to episodes of violence when he defaults on treatment. Whereas the subject lacks the mental capacity to make rational decisions, including the execution of legal documents and transactions, and, in her professional opinion, remains incapable of independently managing his personal and financial affairs. Analysis and Determination 12.The court has considered the petition, the supporting affidavits, medical reports filed and evidence tendered. The medical reports indicate that F.S suffers from schizophrenia and substance use disorder. According to Dr. Nanzala, these conditions have significantly impaired the subject’s mental functioning, rendering him incapable of making rational decisions or independently managing his personal and financial affairs. The medical reports document poor concentration and memory, visual and auditory hallucinations, episodes of agitation and aggression, which manifest the need for continuous psychiatric medication, psychotherapy, psychosocial support, and assistance with everyday life. The conclusion by the psychiatrist is that the subject lacks the mental capacity to manage his own affairs and therefore requires ongoing treatment, supervision, and support. 13.Custody, management and guardianship orders in respect of persons suffering from mental disorder are governed by the Mental Health Act. Section 26 of that Act provides that:-‘’(1)The court may make orders—(a)for the management of the estate of any person suffering from mental disorder; and(b)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 and 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. 14.Further Section 27(1) of the Mental Health Act provides that:‘’(1)Where a manager is appointed under this Part, the court may order that the manager shall have such general or special powers for the management of the estate as the court considers necessary and proper regard being had to the nature of the property whether movable or immovable, of which the estate may consist:Provided that(i)a manager so appointed shall not, without the special permission of the court—(a)mortgage, charge or transfer by sale, gift, surrender, exchange or otherwise any immovable property of which the estate may consist; (b) lease any such property for a term exceeding five years; or(c)invest in any securities other than those authorized by Section 4 of the Trustee Act (Cap. 167); (ii) no manager may invest any funds belonging to the estate of which he is manager in any company or undertaking in which he himself has an interest, nor on the purchase of immovable property under the authority of paragraph(d)of Section 4(1) of the Trustee Act without the prior consent of the court’’. 15.There is no doubt from the material presented before the court that the subject suffers from an apparently chronic mental disorder and is therefore incapable of managing his affairs. The Petitioner, the subject’s mother, has sought to be appointed as his guardian and manager of his estate. In the court’s view, having hitherto taken care of her son, she is eminently qualified as one who would best uphold the subject’s welfare. 16.Having reviewed the material before it, the court is satisfied that the petition ought to be granted as prayed. In addition, for the purposes of pursuing the pending compensation due to the subject and preserving and managing the subject’s immovable property, the court is persuaded to further appoint the Petitioner as a manager of the subject’s estate, but subject to the proviso to Section 27(1) of the Mental Health Act. 17.For the avoidance of doubt the appointment of the Petitioner as manager does not clothe her with the power, except with special permission by this court, to mortgage, charge or transfer by sale, gift, surrender, exchange or otherwise any immovable property of which the estate may consist; to lease any such property for a term exceeding five years; or to invest in any securities other than those authorized by Section 4 of the Trustee Act . DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 16TH DAY OF JULY 2026.C. MEOLIJUDGEIn the presence of:For the Petitioner: Ms. MutisoC/A: Lepatei