https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8381

In re OJ (Subject) (Miscellaneous Application E011 of 2026) [2026] KEHC 8381 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8381 (KLR) Republic of Kenya In the High Court at Kisumu Miscellaneous Application E011 of 2026 A Mabeya, J June 12, 2026 IN THE MATTER OF SECTION 26 OF THE MENTAL HEALTH ACT AND IN THE MATTER OF OJ - SUBJECT AND IN THE MATTER OF AN APPLICATION BY EAO Ruling 1.By a summons in chambers dated 21/4/2026, the applicant invoked sections 26 of the Mental Health Act, Cap 248 Laws of Kenya and sought a declaration that OJ is a person suffering from mental disorder, that she be made his legal guardian and that she be appointed to manage all his affairs. 2.The summons was anchored on the grounds set out in its body as well as the supporting affidavit of EAO sworn on the 1/4/2026. 3.The matter proceeded by way of viva voce evidence in which the applicant attended court and testified. She told the court that she was the biological daughter to the subject. That the subject was 72 years old who had mental illness in terms of the medical report dated 24/2/2026. 4.The said medical report from the Kisumu County Referral Hospital revealed that the subject was a psychiatric patient in that facility. He began his clinic on 10/12/2025 due to schizophrenia. That he presented signs of hallucinations, talking alone, bezzare behaviours, auditory delusions, restlessness, talking alone and use of vulgar language. 5.That due to the subject’s condition, the facility had placed him on certain medication. That it was therefore imperative to grant the orders sought for the subject to be able to be protected. 6.In addition, there was a letter by the area Chief who confirmed by a letter dated 23/2/2026 of the subject’s condition. The letter was produced in evidence. 7.The main issues for determination are: whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248 and whether the applicant should be appointed as guardian to the subject. 8.The Mental Health Act provides for the care of persons who are suffering from mental disorder, custody of their persons and for the management of the estate of such persons. 9.Section 2 of the Act defines “person suffering from mental disorder” as follows: -“person suffering from mental disorder” means a person who has been found to be so suffering under this Act and includes a person diagnosed as psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse.” 10.Section 26 provides 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; andb.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 of the 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.” 11.According to the medical report referred to above, it is clear that the subject cannot comprehend his situation place and time. From the said report, it is apparent that the subject is suffering from a mental disorder in terms of section 2 of the Mental Act and further a medical condition contemplated under section 26 of the Act and is thus incapable of managing his own affairs. 12.Section 26 of the Mental Health Act gives the court the power to make orders regarding management of the estate of any person suffering from mental disorder to any relative or any person suitable but giving preference to a relative. 13.From the evidence on record, the course of the application is well supported as required under the law. The application was consented to by the applicant’s siblings one of whom, Brenda, attended court on 9/6/2026 at the hearing of the application and signed the consent in court. It is therefore the considered view of this court that the prayer for appointment of guardian is well grounded and merited. 14.Consequently, the summons dated 21/4/2026 is allowed in the following terms: -a.That the subject OJ is hereby declared mentally incapacitated under section 26 of the Mental Health Act.b.That the applicant, EAO is hereby appointed the guardian of the subject to manage the subject’s affairs.It is hereby so ordered. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.A. MABEYA, FCIArbJUDGE