https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9579

In re AWK (Ward) (Miscellaneous Application 035A of 2018) [2026] KEHC 9579 (KLR) (Family) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9579 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Miscellaneous Application 035A of 2018 H Namisi, J July 3, 2026 IN THE MATTER OF THE MENTAL HEALTH ACT, CAP 248 AND IN THE MATTER OF AWK (THE WARD) In the matter of MWK 1st Applicant PKW 2nd Applicant Ruling 1.The Applicants approach this Court as the duly appointed joint Managers of the Ward, AWK, seeking orders under sections 26, 27, 28, and 29 of the Mental Health Act. They pray for access to the Ward’s savings held in Afya Sacco Society Limited (Member No. 8xx2) for her ongoing medical care and maintenance. 2.The primary relief sought in the Notice of Motion dated 12 January 2026 is the issuance of specific judicial orders compelling Afya Sacco Society Limited to permit the joint Managers to access, take charge of, and manage the financial savings held by the Ward in the said cooperative society under Member No. 8xx2. The Applicants aver that the mobilization of these funds is strictly and exclusively necessary for the ongoing maintenance, medical care, and general upkeep of the Ward, whose mental incapacity remains uninterrupted. The Ward was adjudged mentally incapacitated by this Court in 2019, and the Applicants were appointed as her Managers. The Applicants depone that the previously authorized funds (Kshs 29,000/= held at Barclays Bank) have been completely exhausted. The Ward's severe mental impairment persists, necessitating continuous medical and personal upkeep. 3.The Applicants deposed that, since the issuance of the 2019 Order, the Ward’s mental condition has not witnessed any positive change or remission. She remains entirely devoid of the cognitive capacity required for independent living and is profoundly dependent on the Applicants for the provision of comprehensive care. The scope of this dependency is absolute; the Applicants bear the total responsibility for facilitating the Ward's fundamental human needs, which encompass the provision of adequate food, safe shelter, appropriate clothing, continuous medical interventions, general protection, and daily personal grooming 4.Faced with the depletion of these accessible liquid assets and the continuing, uninterrupted, and non-negotiable need to finance the Ward's medical and personal maintenance, the Applicants have been compelled to seek further judicial intervention. They now seek to unlock the Ward's accumulated savings held in Afya Sacco Society Limited. The Applicants assert that granting access to these funds is in the highest interest of justice, as it represents the only viable and immediate means to channel the Ward's own financial resources toward her direct survival and dignified maintenance. 5.The Court exercises its parens patriae jurisdiction guided by the Constitution, which provides an impenetrable shield for the vulnerable. Article 43(1)(a) explicitly guarantees every person the fundamental right to the highest attainable standard of health, which inextricably includes access to necessary healthcare services. For an incapacitated individual, the realization of this right is entirely contingent upon the availability of financial resources to procure medical interventions, pharmaceuticals, and specialized nursing care. 6.Furthermore, Article 28 guarantees the inherent dignity of every person and the right to have that dignity respected and protected. The indignity of an incapacitated person languishing in want, unable to afford basic nutritional or medical care while their own financial assets sit frozen in a cooperative society, is a scenario that the Constitution actively abhors. 7.Article 54(1) outlines the specific rights of persons with disabilities, mandating that they be treated with dignity and respect, and that they be provided with the necessary access to materials, devices, and services to overcome constraints arising from their condition. Mental illness constitutes a psychosocial disability under the law, thereby triggering the protective mechanisms of Article 54. When this Court evaluates an application by appointed managers to access funds for the medical and personal upkeep of a disabled individual, it is, in reality, acting as the ultimate guarantor of these constitutional imperatives. Denying access to a subject's own financial resources, when such resources are critically required to sustain their constitutional right to health and dignity, would be legally and morally untenable. 8.The statutory anchor is Part XII of the Mental Health Act. Section 26 grants the Court jurisdiction to make orders for the management of the estate of a person suffering from a mental disorder. Sections 27 and 28 empower the appointed manager to handle the estate and grants the Court broad supervisory discretion. Section 29(1) explicitly authorizes the Court to direct that the property of an incapacitated person be applied directly for their maintenance. 9.The determination of applications brought under sections 26 and 27 of the Act is an exercise of profound judicial gravity. It results in the stripping of an individual's autonomy over their financial affairs. Therefore, it cannot be a mere administrative rubber-stamping exercise based solely on the assertions of relatives. The Court must be rigorously satisfied that the legal and evidentiary thresholds have been definitively met. 10.The definitive jurisprudential standard governing this assessment was comprehensively articulated by the Court in the precedent-setting case of In re NMK [2017] eKLR, which established a mandatory three-factor test for the appointment of managers and the granting of estate access;(i)medical evidence of mental disorder;(ii)fitness of managers, and(iii)best interests principle. 11.In this instance, the Ward's incapacity is established and continuous, per the 2019 declaration. The Applicants are the biological children and have dutifully cared for the Ward without evidence of mismanagement. The funds are sought exclusively for the Ward's survival. A recent Medical Report dated 22 June 2026 confirms that the Ward’s incapacity persists and that she still requires long term medical care. 12.This Court finds that accessing the Afya Sacco funds is the least restrictive intervention to secure the Ward's fundamental rights. 13.While the Court is fundamentally inclined to grant the orders sought to alleviate the immense suffering of the Ward and ease the burden on the caregivers, it must simultaneously address two critical, interrelated aspects of estate management: the absolute legal obligations of third-party financial institutions to comply with judicial directives, and the parallel mechanisms required to prevent the exploitation of the Subject by her appointed managers. 14.The specific target of the present application is Afya Sacco Society Limited, an institution where the Ward holds Member No. 8xx2. Cooperative societies in Kenya hold a profound fiduciary duty to their members, managing their lifelong deposits and shares in trust. 15.The appointment as a manager of an estate under the Mental Health Act is an onerous, highly scrutinized fiduciary role. The Court does not grant a blank cheque to relatives; rather, it establishes a supervised trust relationship. To guard against the financial abuse of vulnerable adults, the Act imposes mandatory statutory obligations on all appointed managers, which this Court will strictly enforce. 16.Under section 33 of the Act, the manager is statutorily required to furnish a comprehensive inventory and annual accounts to the Court or the Public Trustee. The Applicants herein must be subjected to a stringent accounting requirement to ensure that every shilling withdrawn from Afya Sacco is legitimately expended on the Ward's maintenance. 17.Section 27(4) of the Act mandates that the appointment of a manager must be published in the Kenya Gazette to inform the general public and to invite any legitimate objections. This transparency mechanism is a cornerstone of estate law. While the Applicants were initially appointed in 2019, if the formal gazettement of their appointment was not previously undertaken or perfected, it remains a statutory imperative that must be fulfilled immediately to regularize their authority over third-party institutions like Afya Sacco. 18.Further, the Applicants are sternly reminded that the authority granted herein to access liquid, cash funds in the Sacco for maintenance does not, under any circumstances, translate to an overarching power to liquidate real estate. The present Ruling is strictly, narrowly, and exclusively confined to the mobilization of the Afya Sacco funds for maintenance. 19.Acting in the highest interests of justice, this Court orders:i.The Notice of Motion dated 12 January 2026 is allowed.ii.The Applicants shall publish a notice of their appointment in the Kenya Gazette within thirty (30) days.iii.The Applicants are authorized to access and manage all monies and savings held by the Ward at Afya Sacco Society Limited (Member No. 8xx2), which funds shall be utilized strictly for the Ward's maintenance under section 29(1) of the Mental Health Act.iv.The Applicants shall file a comprehensive inventory and statement of account within six (6) months.v.The matter shall be mentioned in seven (7) months to confirm compliance.vi.Costs be borne by the estate. DATED AND DELIVERED AT NAIROBI THIS 3 DAY OF JULY 2026HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:For the Applicants:Court Assistant: Lucy Mwangi