https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11873

In re IOO (Ward) (Miscellaneous Application E017 of 2025) [2026] KEHC 11873 (KLR) (Family) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 11873 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Miscellaneous Application E017 of 2025 H Namisi, J July 30, 2026 IN THE MATTER OF AN APPLICATION UNDER THE MENTAL HEALTH ACT, CAP 248 AND IN THE MATTER OF AN APPLICATION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR A PERSON OF UNSOUND MIND AND IN THE MATTER OF IOO (WARD) Between EKZ Applicant and HO Interested Party and Habil Onyango Interested Party Ruling 1.The matter placed before this Court is an Application dated December 2024, in which the Applicant approaches this Court seeking to be appointed as the Guardian of the Person and the Manager of the Estate of Captain IOO ("the Ward"). The Application is vehemently contested by the Interested Party, who is the biological father of the Ward. Specifically, the Application seeks the following orders:i.Spent;ii.That pending the hearing inter partes of this matter, the Honourable Court be pleased to order the examination of the Subject, IOO, and delivery of a mental and neurological report by Dr. Sylvanus Wabwire or any other qualified and suitable expert to assist the Honourable Court to arrive at a just and fair determination;iii.That the Subject, IOO, be declared a person suffering from a mental disorder and of unsound mind under section 26 of the Mental Health Act and is therefore incapable of protecting his interest with regard to his affairs due to his illness;iv.That the Honourable Court do appoint the Applicant – EKZ – as the guardian ad litem and next friend of IOO, the subject herein, and grant her custody, care and management of the Subject in accordance with the Mental Health Act with powers to manage, sign, access, withdraw, execute and/or carry out any act incidental to the welfare and affairs of the subject;v.That the Interested Party be directed to comply with and facilitate compliance with all and any of the orders and directions of this Honourable Court;vi.That this Honourable Court be pleased to give any other or further directions that it may deem fit for the best interests of the properties, medical and legal affairs of the Subject – IOO.vii.That pending the hearing and determination of this matter, the Honourable Court do order a stay of proceedings and orders in the subordinate courts, being Milimani Chief Magistrates Family Case No E064 of 2024 and Milimani Children’s Case No E2342 of 2024;viii.That there be no orders as to costs. 2.At the heart of this adversarial litigation lies a profound and devastating human tragedy. The Ward, a former commercial pilot who commanded the Embraer and Dreamliner fleets for [Particulars Withheld] with distinction for over two decades, has been struck down by Amyotrophic Lateral Sclerosis (ALS). This progressive, degenerative neurological disease has systematically stripped the Ward of his motor functions, leaving him entirely paralysed, perpetually tethered to a mechanical ventilator, and incapable of verbal communication. He is, in the starkest of medical terms, trapped in a "locked-in" state, surviving within the confines of a retrofitted Intensive Care Unit (ICU) situated at the Karen residence of his parents. 3.The Applicant invokes the statutory jurisdiction of this Court under Section 26 of the Mental Health Act, alongside the inherent protective parens patriae jurisdiction of the High Court, asserting that the Ward’s extreme physical incapacitation amounts to a functional legal incapacity. Consequently, she seeks judicial intervention to manage the Ward's substantial financial estate—accrued from insurance payouts and terminal dues—and to oversee his personal welfare, alleging that the Interested Party has systematically alienated her from her husband and mismanaged his affairs. 4.Conversely, the Interested Party mounts a multi-pronged defence against the Application. First, he challenges the locus standi of the Applicant, arguing that her union with his son never crystallized into a legally recognized marriage, characterizing her merely as a cohabiting partner due to the alleged incompletion of customary dowry negotiations. Secondly, he advances a strict, literal interpretation of the Mental Health Act, contending that while the Ward is physically paralysed, his cognitive faculties remain entirely intact. On this premise, he argues that the Ward is not a person suffering from a mental disorder and, therefore, cannot be subjected to a guardianship order. To anchor this assertion, the Interested Party relies on a Power of Attorney purportedly executed by the Ward in 2024, which he claims validates his current management of the Ward's legal and financial affairs. 5.This dispute is not merely a contest over financial control; it is a complex intersectional inquiry into family law, medical jurisprudence, and the protective mandate of the State over vulnerable adults. It requires this Court to delineate the delicate boundaries between profound physical disability and legal incapacity, to scrutinize the validity of legal instruments allegedly executed by individuals in a locked-in state, and to determine the threshold for the presumption of marriage under Kenyan law following the operationalization of the Marriage Act, 2014. 6.The Court had the benefit of receiving voluminous Affidavits, a myriad of documentary exhibits, and viva voce testimony from both the Applicant and the Interested Party. Furthermore, recognizing the gravity of the medical claims surrounding the Ward and the conflicting narratives regarding his capacity to communicate, the Court directed a site visit by the Assistant Deputy Registrar to ascertain the living conditions and communicable capacity of the Ward firsthand. The Evidence 7.The Applicant testified as PW1. She painted a picture of a long-standing familial unit that was abruptly shattered by illness. She testified that she met the Ward in 2010. Shortly thereafter, she resigned from her lucrative position as a dealer at I&M Bank to dedicate herself to raising their three children. She averred that they lived continuously and peacefully as a family at Langata [Particulars Withheld] Apartments from 2010 until the Ward’s illness necessitated a radical change in their living arrangements. 8.In 2022, the Ward began experiencing severe and inexplicable health complications. Initially misdiagnosed by a neurosurgeon with a spinal disc compression, he underwent surgery which provided no relief. His condition rapidly deteriorated to the point where, after a physiotherapy session, he could no longer climb the stairs to their second-floor apartment. Following a severe respiratory failure and a one-month admission in the ICU at the Aga Khan Hospital in April 2022, the definitive and grim diagnosis of ALS was pronounced. 9.The medical consensus was that the Ward would permanently require mechanical ventilator support. Given the spatial constraints of their Langata apartment, a decision was made to establish a home-care ICU infrastructure at the residence of the Interested Party in Karen. The Applicant testified that she relocated to the Karen home to remain by her husband's side, actively participating in his daily care, meal preparations, and the administration of his medication. 10.However, the Applicant testified that the Karen residence soon became a hostile environment. She described a toxic atmosphere characterized by severe interpersonal conflict, primarily centering around the control of the Ward's finances. She testified that she was systematically marginalized from decision-making processes regarding her husband's care. The tension escalated to an unbearable degree, culminating in her departure from the Karen residence on 20 April 2024 with her children. Following her departure, she was subjected to profound humiliation; she was denied access to the Ward, the locks to the residence were changed, and she was reduced to dropping her children at the gate to visit their father while she remained outside. 11.The Applicant's testimony further laid bare the colossal financial stakes involved in this litigation. Following the Ward's medical termination from Kenya Airways, various insurances, provident funds, and terminal dues were processed and paid out. The Applicant provided a detailed tabulation of these assets, derived from her involvement in the initial paperwork before she was sidelined.i.Critical illness insurance payout of Kshs 15 million which was paid directly to the Applicant as the recognized next of kinii.Loss of licence insurance of Kshs 33 million, which was channelled to the Ward’s estate or disputed Trust Fund;iii.Kenya Airways Provident Fund of Kshs 38 million, which was channelled to the Ward’s estate or disputed Trust Fund;iv.Accumulated leave days and terminal dues of Kshs 17 million, which was channelled to the Ward’s estate or disputed Trust Fund;v.Wanandege Sacco Savings of Kshs 1.4 million, which was channelled to the Ward’s estate or disputed Trust Fund;vi.Personal Bank Account Balance of Kshs 3 million, which is controlled intermediaries; 12.The estimated total known liquid assets above amount to Kshs 107.4 million. 13.The Applicant testified that while she facilitated the paperwork for these substantial payouts in her capacity as the recognized spouse and next of kin, a Trust Fund was subsequently established to hold the bulk of these monies. She narrated to the Court how she was deliberately excluded as a beneficiary of this Trust Fund, allegedly via emails sent from the Ward's account. She cast grave doubt on the authenticity of these instructions, pointing out the physical impossibility of the Ward typing a well-drafted legal email given his total paralysis. 14.The Interested Party, a Pharmacist by profession, took the witness stand to defend his stewardship over his son. He confirmed the devastating physiological impact of the ALS, testifying that the disease has progressed to the point where the Ward has lost all speech, swallowing capabilities, and motor functions. He confirmed that the Ward is 100% dependent on the mechanical ventilator. 15.Crucially, the Interested Party’s testimony revealed a severe degradation in the Ward's ability to communicate. He testified that while the Ward initially utilized a sophisticated eye-gaze machine that tracked ocular movements to formulate sentences on a screen, he has recently lost the muscular control required to operate that technology. Currently, communication is entirely dependent on a rudimentary manual matrix. This matrix is operated exclusively by two intermediaries—Cheruiyot and Jerusa—who have purportedly mastered how to interpret the Ward's eye blinks (opening the eye or blinking the right eye) to determine his wishes. 16.The Interested Party provided a detailed account of the impressive medical infrastructure established at his Karen residence. He testified to an initial capital expenditure of KES 11 million to retrofit the room into a state-of-the-art home ICU, featuring triple power supply redundancies (main grid, solar, and generator) to ensure the ventilator never fails. The care regime involves a 21-person voluntary care team, including a lead doctor, visiting specialists, and 24/7 nursing care. 17.On the issue of the Applicant's status, the Interested Party was uncompromising. He vehemently denied that the Applicant is the legal wife of the Ward. During cross-examination, he admitted that customary dowry negotiations occurred in Kilifi and that half the bride price was paid by his family. However, he maintained a rigid stance that because the dowry payment was never finalized, the marriage was never legally concluded, thereby reducing the Applicant to a mere cohabitant. 18.Furthermore, the Interested Party admitted to utilizing a Power of Attorney executed by the Ward in the course of 2024 to file civil suits and lodge criminal complaints with the Directorate of Criminal Investigations (DCI). When subjected to rigorous cross-examination on how a completely paralysed man—who cannot speak, move his hands, or even operate an eye-gaze machine—could execute a valid legal instrument and hand over his National Identity Card, the Interested Party was notably evasive. He maintained that the Power of Attorney went through "the normal process of the lawyers" and insisted that because the Ward's disease does not affect the brain, his mind remains clear and he retains full capacity to grant such powers. 19.In matters where the capacity and physical reality of a Ward are hotly contested, documentary evidence and partisan testimonies often fail to capture the objective truth. To cure this evidentiary deficit, this Court directed the Assistant Deputy Registrar of the Family Division, Hon. Andrew Omwenga, to conduct a site visit to the Karen residence on 13 June 2025. The resulting Site Visit Report is a pivotal, neutral piece of evidence in this adjudication. 20.The Registrar's report corroborates the Interested Party's description of the medical setup. The Ward is housed in a highly controlled, sanitized room adjacent to the main house, functioning identically to an ICU ward. Stringent sanitization protocols are enforced. The Registrar observed the Ward lying on the bed, sustained by a ventilator, a cardiac monitor with multiple sensors, a suction machine for saliva, a humidifier, and feeding tubes. The report confirms that the Ward could neither talk verbally nor make any physical movements. 21.The most critical aspect of the Site Visit Report concerns the Ward's capacity to communicate. The medical team on-site conceded to the Registrar that the Ward had not been able to use the electronic eye-gaze machine for over two months. The alternative communication method—the manual alphabetical and situational chart—was then demonstrated. The medical team claimed they would read out words, and the Ward would respond by lateral movements of his right eye to signify 'yes' or 'no'. 22.However, the Deputy Registrar explicitly recorded a profound observation in his report: "We attempted that kind of communication in a few occasions but it was very difficult for me to see the said movements of the eye." The medical team rationalized this by stating it requires time to understand that kind of communication. This observation by a neutral Judicial Officer casts a long, inescapable shadow over the reliability and autonomy of the Ward's current communication methods. Analysis & Determination 23.Having painstakingly evaluated the pleadings, the Affidavits, the oral testimonies of the witnesses, the Site Visit Report, and the comprehensive submissions by respective Counsel, this Court distils the following issues for determination:i.Whether the Ward's severe physical disability, in the absence of a diagnosed psychiatric illness, amounts to an incapacity warranting the Court's intervention under the Mental Health Act and its inherent parens patriae jurisdiction;ii.Whether the Applicant has established the existence of a valid legal marriage to the Ward under Kenyan law, thereby vesting her with the priority and locus standi to seek guardianship;iii.Whether the Power of Attorney purportedly executed by the Ward in 2024 can be used to oust this Court’s jurisdiction to grant a guardianship order;iv.Who among the contending parties is best suited in law and in fact to be appointed as the Guardian of the Person and the Manager of the Estate of the Ward? Jurisdiction, Severe Physical Disability, and Legal Incapacity 24.The cornerstone of the Interested Party's objection is jurisprudential in nature. He argues that the Ward is not suffering from a "mental disorder" or "mental illness" as defined by the Mental Health Act. He posits that ALS is a purely physiological, neurological disease that destroys motor neurons but leaves cognitive and executive brain functions entirely intact. Therefore, he argues, the Court cannot usurp the autonomy of a mentally sound adult by appointing a Guardian or a Manager of his Estate; to do so would be a gross violation of the Ward's constitutional right to autonomy and dignity. 25.Section 26 of the Act empowers the High Court to make orders for the management of the estate and the guardianship of a person suffering from mental illness. Section 2 generally defines a person with mental illness as one diagnosed by a qualified mental health practitioner. The 2022 amendments notably attempted to shift the paradigm from substituted decision-making to supported decision-making, emphasizing the autonomy of the individual. 26.However, the jurisprudential debate regarding the distinction between sheer internal mental capacity and functional legal capacity is profound. The Supreme Court, in the landmark decision of Hon. Lady Justice Mary Muthoni Gitumbi v. The Tribunal (SC Petition 10 (E013) of 2022), grappled with this very dichotomy. The apex Court observed that the Mental Health Act does not strictly define "mental incapacity." Rather, the Court held that the law must look at the resultant effect of an illness on a person's capacity to undertake the functions required of them. 27.Legal capacity, therefore, requires not merely the internal cognitive ability to formulate a thought in the silent theatre of the mind, but the functional ability to autonomously communicate, verify, and execute decisions without the undue reliance on intermediaries who might project their own will upon the silent Ward. 28.The facts before this Court present a harrowing reality: the Ward is trapped in a state akin to "Locked-in Syndrome." The Site Visit Report by the Deputy Registrar definitively establishes that the Ward cannot speak, cannot move a single limb, and crucially, can no longer operate the electronic eye-gaze technology that previously afforded him a semblance of autonomous, unmediated communication. He is now entirely reliant on a manual matrix interpreted exclusively by two individuals handpicked by the Interested Party. The Deputy Registrar himself, a neutral and observant judicial officer, could not discern the Ward's eye movements during the demonstration, noting that the communication was functionally invisible to an objective observer. 29.When an adult reaches a stage of physical incapacitation where they cannot autonomously express their will, sign documents, or interact with the outside world without the heavy, subjective interpretation of interested third parties, they cross the Rubicon from mere physical disability into functional and legal incapacity. It is highly artificial, and legally perilous, to maintain that a person in such a severely compromised state requires no legal protection simply because the etiology of his illness is motor-neuronal rather than psychiatric. 30.Furthermore, even if one were to strictly interpret the Act to exclude purely physical paralysis—an interpretation this Court finds overly rigid in the face of absolute communicable failure—the Court is not left impotent. The High Court is a court of unlimited original jurisdiction under Article 165(3)(a) of the Constitution. This includes the ancient and inherent common law jurisdiction of parens patriae, which mandates the Court to act as the ultimate guardian for those unable to care for themselves or protect themselves from exploitation. 31.The doctrine of parens patriae and the inherent jurisdiction of the Court has progressively evolved across common law jurisdictions. It is no longer confined to minors or those with strictly psychiatric illnesses; it encompasses vulnerable adults. I am deeply persuaded by the compelling reasoning in the persuasive English decision of Re SA (Vulnerable Adult with Capacity: Marriage) EWHC 2942 (Fam), where Munby J. articulated that the inherent jurisdiction can, and indeed must, be exercised in relation to a vulnerable adult who, even if deemed to have internal mental capacity, is deprived of the capacity to make true choices due to physical constraints, coercion, or undue influence. 32.This progressive stance has been firmly entrenched in safeguarding vulnerable adults who are completely physically disabled and thus exposed to exploitation, as seen in cases like Re HM (Vulnerable Adult: Abduction) EWHC 870 (Fam) and Re D-R (contact: mentally incapacitated adult) 2 FCR 49. The inherent jurisdiction exists precisely to facilitate the process of unencumbered decision-making by those restrained by external pressure or severe physical disability. 33.Our courts have consistently recognized that severe physical disability can trigger protective legal mechanisms. For instance, Section 107 of the Children Act explicitly permits the extension of guardianship beyond the age of majority for individuals suffering from a physical disability that renders them incapable of managing their affairs. The legislative intent is clear: profound physical disability that impedes the management of one's affairs necessitates protective guardianship. 34.In the instant case, the Ward's inability to independently communicate makes him inherently vulnerable to the projection of intent by his caregivers. Decisions regarding his vast estate of over Kshs 100 million are currently being executed by third parties claiming to interpret imperceptible blinks. This is a classic, textbook scenario that triggers the parens patriae jurisdiction. To turn a blind eye to this vulnerability on a strict textual reading of the word "mental" would be an abdication of the Court's protective duty. 35.I, therefore, find and hold that the Ward, due to his total physical paralysis and loss of autonomous communication, is a vulnerable, incapacitated adult incapable of managing his personal affairs and property within the protective framework of the law. This Court has the absolute jurisdiction, and indeed the solemn duty, to appoint a Guardian and a Manager of his Estate to prevent potential exploitation and ensure his welfare. The Spousal Status and the Presumption of Marriage 36.The Applicant petitions this Court in her capacity as the spouse of the Ward. Under family law practice and the procedural tenets of the Mental Health Act, preference for appointment as a manager or guardian is ordinarily given to a near relative or spouse, provided they are fit and proper persons. The Interested Party vigorously contests the Applicant's locus standi, alleging that she is merely a cohabiting partner. His argument rests entirely on the premise that while customary dowry negotiations commenced, the bride price was only partially paid, and therefore, the marriage rites were never concluded under customary law. 37.The determination of this issue requires a meticulous examination of customary marriage practices vis-à-vis the Marriage Act, and the robust application of the common law doctrine of presumption of marriage. 38.During cross-examination, the Interested Party conceded a crucial point: he admitted that he personally participated in dowry negotiations in Kilifi and that a bride price was indeed partially paid. This admission is fatal to his assertion that no marriage existed. Customary law in Kenya is dynamic, not static. It is a well-established principle of African customary jurisprudence that the payment of dowry is an ongoing process, not a singular, terminal event. Rarely is dowry paid in full in a single sitting; it is designed to maintain lifelong ties between the two families. 39.The Court of Appeal authoritatively settled this in the seminal case of Eliud Maina Mwangi v Margaret Wanjiru Gachangi [2013] KECA 540 (KLR). The Court recognized that customary law is evolutionary and that essential requirements such as dowry may be legally satisfied through partial payment or its modern monetary equivalent, provided the intent to marry under customary law is evident. The partial payment of the bride price by the Interested Party's family to the Applicant's family in Kilifi fundamentally signifies the formal initiation and societal recognition of a customary union, elevating it far beyond mere casual cohabitation. 40.Furthermore, even if the customary rites were deemed technically incomplete by the rigid standards of the Interested Party, the Court must turn its attention to the doctrine of presumption of marriage. The Supreme Court recently and comprehensively settled the jurisprudence on this doctrine in the landmark case of Mary Nyambura Kangara v Paul Ogari Mayaka (SC Petition No. 9 of 2021) KESC 2. While cautioning that a presumption of marriage is an exception rather than the rule, the apex Court laid down eight strict parameters that must be met for a court to presume the existence of a marriage. 41.A rigorous application of these eight parameters to the incontrovertible facts of the present case yields a definitive conclusion. The parties lived together continuously for 12 years, from 2010 to 2022 at Langata [Particulars Withheld] Apartments before moving to Karen out of medical necessity. Neither party was encumbered by a pre-existing statutory monogamous marriage. Both were adults of sound mind at the inception of their union. The intention to marry was unequivocally evidenced by the formal dowry negotiations in Kilifi and the admitted partial payment of the bride price by the Ward's family. Mutual consent is evident from their long cohabitation, the rearing of three children, and the Ward designating the Applicant as his Next of Kin at his workplace. The Ward and Applicant lived openly as husband and wife. In conclusion, the overwhelming preponderance of evidence supports the existence of a marriage. The balance tilts decisively in favour of the Applicant. 42.The Interested Party’s attempt to brand the mother of his grandchildren—a woman who cohabited with his son for a decade and a half, who resigned her banking career to raise their family, and who was formally recognized by his son's corporate employer as a spouse—as a mere cohabiting partner is both factually unfounded and legally offensive. It represents an archaic attempt to utilize technicalities of customary law to disinherit a lawful spouse, a practice courts of equity must vehemently frown upon. 43.Consequently, this Court holds, without hesitation, that the Applicant is the lawful, legal spouse of the Ward. She, therefore, possesses the paramount locus standi and statutory priority to be considered for appointment as the Guardian and Manager of his Estate. The Power of Attorney 44.In a bid to oust the necessity of a court-mandated guardianship order, the Interested Party relies heavily on a Power of Attorney allegedly executed by the Ward in 2024. The Interested Party brazenly admitted to utilizing this instrument to file civil cases in the Magistrate's court and to lodge criminal complaints with the Directorate of Criminal Investigations (DCI) on behalf of the Ward. 45.The legal regime governing the execution, validity, and registration of Powers of Attorney is primarily rooted in the Law of Contract Act, the Registration of Documents Act, and the Land Registration Act. For a Power of Attorney to be legally enforceable and valid, it must meet strict, unyielding criteria regarding both the mental capacity of the donor and the physical mechanics of execution. 46.First, I shall address the issue of capacity. A Power of Attorney is fundamentally a contract of agency. A cardinal, non-derogable rule of agency is that a donor must possess the requisite mental and legal capacity to understand the nature, scope, and consequences of the vast powers being delegated at the exact moment of execution. The Court of Appeal in Grace Wanjiru Munyinyi & Another v Gedion Waweru Githunguri & 5 others KECA 42 laid down the unequivocal principle that a Power of Attorney donated by a person of unsound mind, or one lacking the capacity to comprehend the transaction, is null, void, and of no legal effect whatsoever. The Court emphasized that in circumstances where a person lacks capacity, the proper, lawful avenue is to petition the court for managerial orders under the Mental Health Act, rather than circumventing the law by drafting an invalid Power of Attorney. 47.At the time the disputed Power of Attorney was purportedly executed in 2024, the Ward was already confined to an ICU bed, entirely paralysed, and unable to speak or use his eye-gaze machine. The Interested Party claims the Ward's mind was clear. However, as deeply analyzed hereinabove, the Ward's severe physical constraints deprived him of functional legal autonomy. A document granting sweeping legal powers over a vast estate requires active, unimpeded, and verifiable consent. Given the Ward's extreme vulnerability and total reliance on the Interested Party for his very survival—down to the breathing apparatus and feeding tubes—the potential for undue influence is absolute. An individual in a locked-in state cannot resist the will of those who literally keep him alive. 48.Secondly, and perhaps more damningly, is the issue of statutory execution. Section 44 of the Land Registration Act and the procedural requirements under the Registration of Documents Act strictly require that a Power of Attorney be executed by the donor appending a signature or a thumbprint/mark in the physical presence of attesting witnesses. The law is clear: if a donor cannot sign due to physical incapacity, they may make a physical mark. 49.The medical evidence and the Site Visit Report before this Court establish beyond any doubt that by 2024, the Ward could not move his hands, his limbs, or any part of his physical body save for imperceptible twitches of his eye. He could not physically hold a pen to sign his name. He could not independently lift his hand to press an ink-stained thumbprint onto a document. 50.During cross-examination, Counsel for the Applicant cornered the Interested Party, demanding an explanation as to how a completely paralyzed Ward physically executed the legal deed or handed over his National Identity Card. The Interested Party’s response was shockingly evasive and dismissive, stating only that "It went through the normal process of the lawyers" and "He has his ID up to now". This vague, defensive testimony spectacularly fails to explain the mechanical and physiological impossibility of the Ward executing a legal deed. A legal document generated by third parties and signed, stamped, or processed without the physical, verifiable, and autonomous mark of the donor is legally sterile; it is a forgery of intent. 51.It is highly improper, and indeed legally actionable, for legal practitioners or relatives to process a Power of Attorney for an individual who lacks the physical mechanics to execute it, relying instead on intermediaries interpreting eye blinks. Such conduct undermines the very foundations of documentary authenticity. 52.Accordingly, I find and hold that the Power of Attorney purportedly executed by the Ward in 2024 cannot be used by the Interested Party to curtail this Court’s power to appoint a guardian. Appointment of Guardian and Manager of the Estate 53.Having firmly established that the Ward requires a court-appointed Guardian and Manager, having affirmed the Applicant's status as a legal spouse, and having struck down the invalid Power of Attorney, the Court must now discharge its ultimate duty: determining who is best suited to bear these heavy, fiduciary responsibilities. 54.Pursuant to the Mental Health Act, a functional distinction is often drawn between a "Guardian of the Person" (who makes decisions regarding medical care, personal welfare, and daily living arrangements) and a "Manager of the Estate" (who safeguards property, executes financial transactions, and manages bank accounts). While these roles can be, and often are, vested in a single individual, the highly toxic and adversarial dynamics characterizing the present family dictate a much more nuanced approach. The Court's decision cannot be guided by the egos of the litigants, but strictly by the overarching principle of the welfare and best interests of the Ward. 55.The Applicant, as the lawful spouse, naturally and legally holds priority for appointment. She gave compelling testimony regarding her care for the Ward during the early, terrifying days of his diagnosis, her management of his physiotherapy, and her enduring willingness to care for him. 56.However, a court of law must deal with stark medical realities, not merely legal priorities. The reality of the Ward's current condition cannot be overstated or ignored. He is 100% dependent on a mechanical ventilator. He requires complex, highly specialized, and uninterrupted ICU care to remain alive. 57.The Interested Party, utilizing his professional background as a Pharmacist, has expended an estimated KES 11 million to retrofit his Karen home into a highly specialized medical facility. This facility is equipped with triple power backups to ensure the life-saving ventilator never loses power, a critical necessity in an environment prone to power fluctuations. The Ward is attended to by a dedicated 21-person care team, including a lead doctor, visiting specialists, and 24/7 nursing care. 58.The Applicant herself candidly admitted during cross-examination that she does not currently possess the physical infrastructure to accommodate him at the Langata apartment, noting that moving him requires a specialized stretcher and an ambulance. 59.To uproot a highly fragile, ventilator-dependent ALS patient from a stable, high-functioning ICU environment merely to satisfy the matrimonial priority of the Applicant would be medically reckless, irresponsible, and highly detrimental to the Ward's fundamental right to life. Therefore, the physical custody and the day-to-day medical guardianship of the Ward must, out of pure medical necessity, remain with the Interested Party at the Karen residence. 60.However, this appointment comes with a stern caveat. It is not a license for the Interested Party to isolate the Ward or treat him as chattel. The Applicant testified to a harrowing pattern of alienation—being locked out, humiliated, and forced to drop her children at the gate without being allowed to see her husband. Such conduct by the Interested Party is reprehensible and contrary to the spirit of guardianship. A Guardian acts as a fiduciary and an agent of the Court, not as an absolute monarch over the ward. The Ward, despite his illness, retains a fundamental human right to the emotional support, presence, and dignity afforded by his wife and his children. Any continued attempts to alienate the Applicant will be viewed as a breach of fiduciary duty and will attract severe sanctions from this Court. 61.The Ward's estate is vast and highly liquid, comprising over Kshs 100 million derived from critical illness insurance payouts, loss of licence insurance, provident funds, and terminal dues from his distinguished aviation career, alongside a contested Trust Fund. 62.The Interested Party attempts to distance himself from the financial fray, claiming he does not want to manage the affairs and is only concerned with medical care. Yet, this claim rings hollow and paradoxically contradicts his actions; he actively procured an invalid Power of Attorney, changed locks to deny the spouse access, and has engaged in extensive litigation utilizing the Ward's resources. 63.The Applicant, conversely, holds a highly legitimate claim as the spouse and the mother of the Ward's three children, whose future education and maintenance must be secured. She is already in control of Kshs 15 million paid to her directly by Kenya Airways as the designated next of kin, funds she testified she is utilizing for the upkeep of the children and previous medical bills. However, the Applicant's sudden and suspicious exclusion from the subsequently formed Trust Fund—which holds the bulk of the estate (approximately KES 89 million)—leaves the estate highly vulnerable to mismanagement or opaque administration by third-party trustees. The mandate of these trustees was derived during a period where the Ward's capacity to give instructions via email was functionally impossible. 64.When appointing a Manager under Section 27, the Court must be absolutely satisfied that the proposed manager will utilize their powers strictly for the benefit, welfare, and best interests of the Ward and his legal dependents. Given the deep-seated mistrust, the acrimonious accusations of theft, and the outright hostility between the Applicant and the Interested Party, appointing either of them as the sole Manager of the Estate is a recipe for disaster. It is likely to spawn endless secondary litigation, deplete the estate in legal fees, and ultimately operate to the detriment of the Ward's welfare. 65.To balance the equities, protect the vast estate from unilateral depletion, and ensure that both the Ward's exorbitant monthly medical bills and the children's maintenance needs are seamlessly and transparently met, a co-management structure is not just preferable, it is imperative. 66.This Court finds it just, equitable, and necessary to appoint both the Applicant and the Interested Party as Joint Managers of the Estate of the Ward. As Joint Managers, they will be forced by law to act concurrently and transparently, providing an inbuilt system of checks and balances. They shall have joint signatory mandates over the Ward's bank accounts and financial instruments. 67.In light of the foregoing, this Court issues the following Orders:i.A Declaration is hereby formally issued that the Ward is a vulnerable and functionally incapacitated adult incapable of managing his personal affairs and estate within the meaning of Section 26 of the Mental Health Act;ii.The Interested Party is hereby appointed as the Guardian of the person of the Ward, strictly limited to overseeing the day-to-day medical, nursing, and physical welfare of the Ward at the Karen residence.iii.The Guardian is hereby mandatorily ordered to grant the Applicant and the three minor children of the marriage, unfettered, unhindered, and dignified access to the Ward at the Karen residence.iv.The Applicant and the Interested Party are hereby appointed as Joint Managers of the Estate of the Ward, with the power to access all bank accounts, insurance payouts, trust fund records, and financial instruments belonging to the Ward. They shall act jointly in all financial dispositions, ensuring that the primary application of the estate's funds is directed towards the Ward's medical care and the maintenance and education of his three children. They shall have no power to sell, charge, or alienate any immovable property of the Ward without the express prior leave of this Court.v.Pursuant to Section 27(4) of the Mental Health Act, the Joint Managers shall jointly cause the publication of a Notice in the Kenya Gazette within thirty (30) days of the delivery of this Ruling.vi.The Joint Managers shall jointly prepare and file in this Court a comprehensive inventory of all assets (including the Trust Fund assets, bank balances, and insurance payouts) and a statement of account of the estate within six (6) months from the date of this Ruling.vii.Given the delicate, familial nature of this dispute, each party shall bear their own costs of this Application. The costs of the Ward's medical upkeep and the execution of these orders shall be drawn from the Estate of the Ward.viii.This matter shall be mentioned before this Court on 27 January 2027 to confirm compliance with the gazettement order, the filing of the comprehensive inventory, and to issue any further directions regarding the management of the estate and the welfare of the Ward. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF JULY 2026HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:For the Applicant: Mr Lagat & OndabuFor the Interested Party: Mrs OduorCourt Assistant: Lucy Mwangi