[2016] KEHC 7918 (KLR)
The court found, based on the medical evidence provided by Dr. Caleb Othieno and the pleadings, that P M M is suffering from Alzheimer’s disease and is incapable of managing her own affairs. The court was satisfied that the applicant had established sufficient grounds for the appointment as manager and guardian of...
Source-derived case information.
- Citation
- [2016] KEHC 7918 (KLR)
- Parties
- Applicant: F K N; Respondent: E N M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 67 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- petition allowed
- Judges
- LA Achode
- Legal Topics
- Mental Capacity, Guardianship, Estate Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
F K N
Applicant
E N M
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether P M M is a person suffering from mental disorder within the meaning of the Mental Health Act.
- 2 Whether the applicant should be appointed as manager and guardian of the estate of P M M.
- 3 Whether the respondent has unlawfully intermeddled with the subject's estate and should be ordered to account for proceeds received.
Ratio Decidendi
The court found, based on the medical evidence provided by Dr. Caleb Othieno and the pleadings, that P M M is suffering from Alzheimer’s disease and is incapable of managing her own affairs. The court was satisfied that the applicant had established sufficient grounds for the appointment as manager and guardian of the subject’s estate. The court further found that the respondent, having acted under a disputed power of attorney, should be required to account for proceeds received from the subject’s estate. Accordingly, the court allowed the petition and granted the orders sought by the applicant, including management of finances, authority to employ professional advisers, and an order for...
Court Disposition
petition allowed
Orders
- The applicant is appointed as manager and guardian of the estate of P M M.
- The applicant is authorized to manage the subject’s finances, pension, and bank accounts.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY AND PROBATE DIVISION
MISC. APPLICATION NO. 67 OF 2016
IN THE MATTER OF P M M (A PERSON OF SUFFERING FROM MENTAL DISORDER)
F K N……………….…..………………PETITIONER
VERSUS
E N M…………………………………RESPONDENT
R U L I N G
1. By a Petition dated 27th May, 2016 brought under Sections 26-39of theMental Health Act (Cap 248) Lawsof Kenya,by the Petitioner, he sought orders of court that:
a). The Petitioner be appointed as Manager and Guardian of the Estate of P M M (hereinafter the Subject), a person of unsound mind.
b). The Petitioner be allowed to manage the subject’s finances, pension and bank accounts.
c). An order that all sums expended by the Petitioner in connection with the maintenance and support of the Subject given by the Petitioner be borne by the Subject’s estate.
d). The Petitioner be empowered to employ professional advisers and pay their proper charges from the estate.
e). The Respondent be ordered to account for the proceeds of pension in respect of the Subject’s account with Barclays Bank, Queens way Account No. [particulars withheld] among others and the estate of the Subject that she has received.
2. The application is premised on grounds that P M M, aged 54 years a person suffering from Alzheimer’s disease, a degenerative brain disease that leads to impaired functions and loss of brain cells. That she is not in a position to manage her estate, or make rational decisions and needs home care as advised by the doctor. That the Subject could not legally donate a power of attorney as purported by the Respondent. The Respondent is said to have unlawfully opened account No. [particulars withheld] instead of Account No. [particulars withheld], Barclays Bank Queens Way branch, which was used to process payment of the Subject’s pension, and may be used to misappropriate the said pension.
3. The Applicant asserts that E N M, the Respondent herein, who is the Subject’s daughter, has been selling and wasting the Subject’s property using the said power of attorney. The Respondent is likely to continue intermeddling with the Subject’s estate unless prevented by an order of this court from doing so.
4. In a supporting affidavit sworn on 27th May 2016 the deponent F K N depones that he is the brother of P M M (hereinafter referred to as the Subject) who is purported by the Respondent to have donated a power of attorney dated 19th December 2014 in her favour, and registered on 23rd December 2014 by J. W. Kamuyu.
5. Further that the Subject is a daughter of D N M alias D N A now deceased who died intestate and left the following people surviving him who are yet to apply for letters of administration:
i). J N N - wife
ii). F K M - son
iii). J M M - son
iv). N W M - daughter
v). T M N - daughter
vi). P M M - daughter
vi). J N N - son
6. The Applicant attached to his application a medical report from Dr. Caleb Othieno, University of Nairobi, Department of Psychiatry which stated that the Subject presented with a 2 year’s history of loss of memory, inability to recognise and name common objects and self-neglect. That a scan of the brain revealed a decrease in brain volume with a corresponding increase in brain fluids. She was diagnosed with Alzheimer’s disease which is a degenerative brain disease that leads to impaired functions of brain cells. The doctor counselled the relatives and advised on home care.
7. Having perused the pleadings filed in this matter and heard the submissions of learned counsel Mr. Kurauka for the Applicant, and in view of the expert opinion of Dr. Caleb Othieno the psychiatrist, I am persuaded that the Subject is a person who is suffering from mental disorder. I find that she is not therefore capable of taking care of herself and conducting her own affairs.
There being merit in the Petition dated 27th May, 2016, I hereby allow it in the terms proposed by the Applicant, in prayers no (b) (c) (d) (e) and (g) of the petition.
SIGNED DATEDandDELIVEREDin open court this 21st day of July 2016.
L. A. ACHODE
JUDGE