https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7372

In re JWN (A Person with Mental Illness) (Miscellaneous Civil Application E032 of 2026) [2026] KEHC 7372 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7372 (KLR) Republic of Kenya In the High Court at Nyeri Miscellaneous Civil Application E032 of 2026 MA Odero, J May 29, 2026 IN THE MATTER OF JWN (A PERSON WITH MENTAL ILLNESS) In the matter of MWK Applicant Judgment 1.The Applicant MWK has filed this Notice of Motion seeking the following orders:-“1.Spent.2.That MWK a representative of JWN be appointed as the Manager of the Estate and Affairs of JWN a Person with Mental illness.3.That the Applicant be allowed to institute proceedings in court and protect the Estate of JWN against any waste or alienation by 3rd parties including Tittle Number Nyeri/Mweiga/xxxx.4.That the Applicant be allowed to operate the subject’s Bank Account Number 34xxxxxxx43 Post Bank Nyeri Branch and Bank Account Number 011xxxxxxx59 Equity Bank Nyeri Branch for the benefit of the subject.5.That the Honourable Court does issue any other order as it may deem fit and just to grant in the circumstances of the matter.6.That the costs of the application be in the costs in the cause.” 2.The application was premised upon Sections 26 and 27 of the Mental Health Act Cap 248, Laws of Kenya, Section 3 and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010 and was supported by the Affidavit of even date sworn by the Applicant. 3.The Applicant is the sister of the subject JWN. She told the court that the subject is an elderly man who has never been married and has no children. The Applicant stated that the subject fell ill in the year 2021 and has continued to deteriorate. That the subject is unable to manage his own affairs due to mental impairment arising from dementia. 4.The applicant told the court that the subject lives in the family home in Mweiga Nyeri County with a brother. She states that they have hired two caregivers for the Applicant. The applicant prays to be appointed as the legal guardian for the subject and manager of his affairs. 5.PW2 EKN told the court that he is also a brother to the subject. PW2 confirms that the subject is suffering from dementia and is unable to manage his own affairs. PW2 further confirmed that he is aware of this application. He states that he has no objection to the Applicant who is their sister being appointed as the legal guardian for the subject. Analysis And Determination 6.Section 26 of the Mental Health Act, Cap 248 provides for the circumstances in which a court may make orders for the management and maintenance of patient (subject) as follows:-“Order 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; 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 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. [Own emphasis] 7.In order to warrant the appointment of a legal guardian it must be demonstrated that the subject suffers from a mental disorder rendering him incapable of managing his own affairs. 8.I have perused the letter dated 31st March 2026 written by the area Assistant Chief. (Annexture’MWK 1’ to the Supporting Affidavit). The chief confirms that the subject is a resident of his location and that he has no wife or children. The chief confirms that the subject suffers from mental problem and is being cared for by his two (2) siblings. 9.I have perused the Medical Report dated 10th December 2025 prepared by DR MWENDA, Consultant Psychiatrist at Nyeri PGH. (Annexture ‘MWK ‘3’). The report indicates that the subject has been diagnosed with ‘Moderately severe dementia’. The psychiatrist goes on to state that“JW suffers on irreversible dementia illness.J cannot conduct his business/administer his estate independently” 10.I was able to see the subject on the virtual platform. He was at the time of the hearing admitted in hospital and was in a hospital bed. The subject was an elderly gentleman who appeared weak and frail. He did not respond when spoken to and appeared confused. It was clear thatthe subject was suffering from some mental impairment. 11.In RE: N. M. K [2007] eKLR the Court in considering what factors ought to be borne in mind when making a Guardianship order stated as follows:-“In considering an application brought under section 26 and 27 of the Mental Health Act the court guided by three main factors.a.There must be medical evidence warranting the determination by the court that the subject suffers a mental disorder.b.The person to be appointed to be either a Guardian or Manager must be fit to be so appointed.c.The court must be satisfied that the proposed manager will utilize her powers for the benefit and welfare of the subject.The overriding principles in applying all these factors is that the welfare and best interest of the subject must be overall guiding principle. [own emphasis] 12.Finally I find that this application is merited. The same is allowed and the court makes the following orders:-1.The subject JWN is declared to be a person suffering from a mental disorder within the terms of the Mental Health Act, Cap 248, Laws of Kenya.2.The Applicant MWK is hereby appointed as the legal Guardian for the subject and manager of his estate.3.The Applicant MWK is authorized to manage and operate the assets of the subject including the Bank Accounts No. 03xxxxxxxxx43 held at Post Bank Nyeri Branch and Account No. 011xxxxxxx590 held at Equity Bank, Nyeri Branch as well as the property known as LR No. Nyeri/Mweiga/xxxx.4.No orders on costs. DATED IN NYERI THIS 29TH DAY OF MAY 2026.................................MAUREEN A. ODEROJUDGE