https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10030

In re Estate of Koech (Probate & Administration E005 of 2025) [2026] KEHC 10030 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 10030 (KLR) Republic of Kenya In the High Court at Kabarnet Probate & Administration E005 of 2025 TM Matheka, J July 3, 2026 IN THE MATTER OF THE ESTATE OF SK In the matter of Dennis Kiprop Kimutai Ex parte Applicant Ruling 1.What is before me is the Petition dated 1st October, 2025. It is brought under sections 2, 26, 27 & 28 And Part XII of the Mental Health Act (CAP 248), Order 32 Rule 15 of the Civil Procedure Rules, Section 1A, 1B And 3A of the Civil Procedure Act seeking orders that:i.This Honourable court be pleased to declare SK an adult male to be a person suffering from acute congenital defects and mentally incapacitated.ii.Upon prayer (a) above being granted, this Honourable Court be pleased to declare that SK being such a person mentally incapacitated and/or a person suffering from mental disorder by reason of acute defects is a person in need of care protection and guardianship.iii.That upon prayers (a) and (b) above being granted, this Honourable Court be pleased to appoint the Petitioner herein DKK as the guardian for the said SK.iv.Upon the petitioner DKK being appointed as the guardian of the said SK, this Honourable Court be pleased to authorize the Applicant but not limited to pursue protect and manage the estate and/or inheritance due to SK from his father interest JKC (Deceased) estate through succession proceedings.v.Any benefits/profit and/or proceeds that may arise or accrue from such inheritance be utilized for the benefit and upkeep including but not limited to medication of the said SK. 2.The Petition is supported by the affidavit of DKK who avers that he is a son to one SK (the subject of this Petition) hence his father and MT. 3.That his father SK is a son to JKC (Deceased). 4.That after the demise of the said JKC (Deceased); SK was initially taken care by his wife MT but after a while she abandoned him due to family disputes. 5.That MT left the estate of their grandfather one JKC (Deceased) to which his father SK is entitled and thus it is necessary for a guardian to be appointed so as to pursue the interest of SK in the said estate so that he can benefit from the estate. 6.The Petition is opposed through the replying affidavit of the subject SK sworn on 29th October,2025. 7.He depones that the applicant is his 2nd born son and he has 4 other Children (3 adults and 2 minors) whom he has diligently taken care of and provides for. 8.That he is dumbfounded by the idea of his 2nd born son filing such an application claiming his mental incapacity. That the application is totally misadvised/misconceived and/or in bad faith and should be declared void ab initio on the grounds that he has always provided and cared for his family since the birth of his first born child and later on the other children until now and he is capable of running his personal and financial affairs. 9.That he has the capacity of making personal decisions as well as carry out personal business effectively and efficiently; that he was employed as a herder/herdsman in Eldoret where he earned a salary and used the proceeds from the said employment to pay school fees and other needs for his children and he has no record or history of being violent or causing harm to anyone. 10.That because of this application he presented himself to Nakuru County Referral and Teaching Hospital on the 28th October 2025 for a Psychiatric examination which was conducted by Dr. Wafula. He was issued with a Psychiatric Report which he has produced. He maintains that he has no history of mental disability neither does he have any medical records as alleged by the Applicant herein. 11.That the averments by the Applicant and the exhibits produced herein are fabricated lies and forgery which are aimed at misinforming/misguiding the Honourable court and this court should summon the author of the said documents to come and ascertain their authenticity. 12.The Respondent avers that he is enjoying perfect health both mentally and physically hence, he does not require any medical attention contrary to the allegations by the Applicant. 13.That the same can be ascertained by the discrepancy in the Applicant's petition which speaks of critical health condition whereas the Supporting Affidavit only speaks of the need to pursue his interest in his late father's Estate. He is convinced that this Application is made in bad faith and same is aimed at inordinately delaying the Succession Proceedings in P & A No. 001 of 2024 taking note that his wife filed a similar application (seeking to be granted guardianship of his estate) in the succession cause. 14.That he suspects that the Applicant who is his son and his mother who is his wife could be working in cahoots with the objector in Succession Proceedings in P & A No. 001 of 2024 to halt/delay the said proceedings. This is evidenced by their actions of filing similar applications one after the other. 15.The petitioner and his mother's actions of initiating proceedings about mental health are very concerning/troubling/worrying and/or disturbing hence he is scared for his safety and wellbeing since they are his immediate family and he can confidently state that he has the capacity to represent his interest as a beneficiary P&A No.001 of 2024 that will culminate to the issuance and confirmation of certificate of grant hence there is no need of Appointing a guardian on his behalf as prayed by the Applicant. 16.The petition is canvassed by way of both oral and written submissions. 17.The petitioner through Mr. Mose relies on the on the application, supporting affidavit with medical report. That the medical evidence is clearly documented. 18.Relying on Re: RG [2025] eKLR it is argued that in an application such as this the court is guided by three pillars being:-i.Medical evidence documentation.ii.Fitness of the guardian- where the applicant is the kin of the subject.iii.Welfare of the subject. 19.That the Applicant will not use his powers against the good of the subject who is his father. That all the documents adduced in court nowhere is the relationship between the applicant disputed. That in the replying affidavit, the Respondent has not objected to the relationship between the subject and his immediate family. That the Respondent is not a member of the nuclear family. 20.it is submitted that the Mental Health Act at Section 26 and 28, the Respondent is required to take the subject to a mental hospital -subject to his mental condition which has not been done and so the medical report from Nakuru County Referral Hospital where the respondent was taken by the nephews is suspicious. 21.The applicant seeks that the medical report be expunged from court. 22.The Subject filed skeleton submissions where they submit that the matter before court revolves around guardianship. 23.That the applicant adduced a medical report where his father was treated at Eldoret and marked as DKK-2. That this was done in a Government hospital as of that time where the applicant and his mother accompanied the subject. 24.The applicant submits that the court has the powers under section 26 and 28 of the Mental Health Act to issue guardianship and estate management. 25.That the subject is the applicants' father who is not seeking for guardianship for his own interest, but for the interest of his father and his entire family and that all this time the applicant had the blessings from his nuclear family to be enjoined as an interested party in the succession cause no E001/2024 at Kabarnet High court that is why he filed a petition before this court for guardianship on behalf of his known father who is mentally challenged. 26.That it is suspicious that nephews of the subject took him to Nakuru County Referral Hospital to take their uncle to hospital for a mental check-up while the subject has a spouse and 5 children. That the court should assess the motive or and determine whether or not the subject was actually examined or not. 27.That an argument on the suitability of the proposed guardian is always connected with the family nexus and consensus. 28.It is submitted that the replying affidavit sworn on the 29th October, 2025 is sworn by the subject himself. That the medical report produced by the applicant dates to 2006 when he was in Eldoret General Hospital. That that the report is outdated. That a look at the last page, they were directed to seek Psychiatric doctor and this was on 8th August, 2006. That diagnosis is provided but no hospital or doctor disclosed as having conducted the test hence these cannot be relied on. 29.It is submitted that the subject is able to conduct his daily activities and his personal affairs. That he was ever employed and he supported his family. 30.That Paragraph 4 states that after the demise of his grandfather John Chelagat the subject was taken care of by their mother due to family disputes. However, the applicant’s mother has filed protest in the succession cause where she states that the subject was whisked away by his siblings from their home. Analysis and Determination 31.Upon considering the record, including the Affidavits presented, I find the issue that arises for determination herein to be “whether it has been established that the subject herein is suffering from mental disorder to such an extent as to be incapable of managing his affairs”. and “if indeed the subject is suffering from such mental disorder, who then should be appointed to manage his affairs?”. 32.The Petitioner has invoked, inter alia, the provisions of Section 26 and 28 of the Mental Health Act. Section 26 provides as follows: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)Whereupon 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. 33.The definition of “a person suffering from mental disorder” is provided in Section 2 of the Act to mean the following:“A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.” 34.The Petitioner and the subject have furnished to the Court documents to support their respective cases. The applicants have annexed copies of treatment documents from Eldoret General Hospital where the subject is alleged to have undergone treatment for mental disorder between July, 2006- September, 2006. However, on their part, the subject states that he presented himself at Nakuru County Referral and Teaching Hospital on the 28th October 2025 wherein a Psychiatric Examination was conducted by Dr. Wafula and he was issued with a Psychiatric Report. 35.Based on the said Medical Report and the Affidavits on record, the subject is contesting the allegations of mental incapacity. He has personally sworn an affidavit in which he avers that he is capable of taking care of his affairs including managing his properties and taking care of his children. 36.It is clear to me that what is in issue is the share of the subject from the distribution of the estate of his farther JKC (Deceased) in P & A No. 001 of 2024 where his wife has filed a similar application seeking similar orders as those sought by the son here 37.I would have expected that the petitioner would have presented his father in court for the court to determine by itself what he is saying. In addition, the documents relied on by the portioner are 20 years old and there is nothing in between to demonstrate that the subject has ever been admitted in hospital or undergone any other treatment for the alleged mental incapacity. 38.The Succession cause has an administrator who has to distribute the estate of the deceased in accordance with the law. Should the subject herein have any issues they will be raised during that time in that cause? In any event the court has a duty to ensure that the beneficiaries and their shares are identified and assigned. 39.In the peculiar circumstances of this case the subject says he is ok. His position is supported by a recent medical report attached to his own affidavit. The court cannot disbelieve him simply because the son says he is mentally unfit. The conduct of his wife and his son is suspicious making it appear as if they will do anything to ensure that he does not deal with his inheritance from his father. In any event the Mental Health Act gives a person with Mental Illness (which is denied in this case) the right to choose a supporter of their choice. 40.Why would they file similar applications in different courts? Yet the subject has other children who are not part of this process .Why would the family not just sist down and agree on the way forward and support their father and husband in the process? 41.The Petitioner has asked the court to consider;i.Medical evidence documentation - the medical documentation is over 20 years old and is inconclusive. Nothing recent to support the claims that the subject has a mental illnessii.Fitness of the guardian- where the applicant is the kin of the subject.- the petitioner’s actions are suspect considering that the subject has denied those allegations and placed before court recent medical report. The fact that his mother (wife of subject) is seeking similar orders elsewhere creates suspicion that there is other motives making the petitioner unsuitable. The subject is empowered by law to pick his own supporter. The petitioner ought to have sought a proper hearing of this inquiry by presenting the subject to court Welfare of the subject- The subject has opposed this application as it is not brought in good faith. In the succession cause, the administrator will take care of the interests of the subject as is his duty. 42.Their conduct is suspicious and reeks of ulterior motives. 43.The court has been placed on alert in the succession matter as it appears that that is the issue. 44.In the circumstances the petition is without merit and the same is dismissed with costs to the subject. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 3RD JULY 2026.MUMBUA T MATHEKAJUDGECA Gladys/MomanyiMose for PetitionerMs. Chirchir for Subject