[2019] KEHC 12196 (KLR)
The court determined that the affidavit evidence and submissions alone were insufficient to resolve the disputed facts regarding the Subject's mental capacity and the suitability of the proposed managers. To ensure a fair determination, the court directed that parties file statements and appear for...
Source-derived case information.
- Citation
- [2019] KEHC 12196 (KLR)
- Parties
- Applicant: MMM; Applicant: TWM; Respondent: TWW; Respondent: EWW; Respondent: ENW
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 26 of 2018
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Directions Before Substantive Hearing
- Outcome
- Directions issued for further evidence and cross-examination before substantive determination.
- Judges
- A Ali-Aroni
- Legal Topics
- Mental Capacity, Guardianship, Estate Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MMM
Applicant
TWM
Applicant
TWW
Respondent
EWW
Respondent
ENW
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Directions Before Substantive Hearing
Legal Issues
- 1 Whether the Subject, AMT, is of unsound mind and requires a guardian manager for his estate.
- 2 Whether the Petitioners should be appointed as managers of the Subject's estate.
- 3 Whether the Subject's mental capacity is sufficiently impaired to warrant court intervention.
Ratio Decidendi
The court determined that the affidavit evidence and submissions alone were insufficient to resolve the disputed facts regarding the Subject's mental capacity and the suitability of the proposed managers. To ensure a fair determination, the court directed that parties file statements and appear for cross-examination, and that the Subject be made available for observation. The court also reserved the right to order an independent medical examination if necessary. These directions aim to ensure that the court has adequate evidence to decide whether the Subject is of unsound mind and whether the Petitioners should be appointed as managers of his estate.
Court Disposition
Directions issued for further evidence and cross-examination before substantive determination.
Orders
- Parties to file statements and appear for cross-examination as to their suitability and averments.
- The Subject, AMT, to be made available before the court.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY AND PROBATE DIVISION
MISC. APPLICATION NO. 26 OF 2018
IN THE MATTER OF THE MENTAL HEALTH ACT CAP 248
AND
IN THE MATTER OF A M T (A PERSON OF UNSOUND MIND)
IN THE MATTER OF: A PETITION FOR THE APPOINTMENT OF A GUARDIAN MANAGER FOR AMT AND ESTATE
BETWEEN
MMM................................................................1ST PETITIONER
TWM................................................................2ND PETITIONER
AND
TWW..............................................................1ST RESPONDENT
EWW.............................................................2ND RESPONDENT
ENW..............................................................3RD RESPONDENT
R U L I N G
1. The Subject herein is one AMT. The 1st and 2nd Petitioners are his first wife and daughter. The 1st Respondent his 2nd wife, the 2nd and 3rd Respondents brother and sister of the Subject.
2. There were two pending applications dealing with the same issues being raised in the petition and the court directed that the same be dispensed with to allow hearing of the petition by way of affidavits and submissions.
3. The flip side of such a directive though meant to quickly dispose of the matter is that the veracity of averments is never tested by way of cross examination and the court does not get to observe the demeanor of the witnesses and in a case such as the one before court, the Subject remains just that as the court does not see the Subject nor get to make observation.
4. Simply put for now; the Petitioners seek to have the court a declaration that the Subject suffers from mental disorder and proceeds to appoint the Petitioners as managers of his Estate.
5. The Respondents on the other hand state that the Subject though sick has his mental faculty unaffected, does not need managers of his estate to run his affairs.
6. In order for the court to appreciate the two extreme positions taken by the parties the affidavit evidence and submissions thereof fall short of laying bare the facts and the truth.
7. Consequently I direct as follows:
a. The parties do file statements and appear before court for cross examination as to their suitability and/or their averments.
b. That the Subject be made available.
c. The court would after (a) above if need, direct for examination of the Subject by an independent medical practioner.
d. A date be fixed for hearing.
Dated and Delivered in Nairobi on this19TH day of DECEMBER, 2019
…………………………………….
ALI-ARONI
JUDGE