[2022] KEHC 1686 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

MISCELLANEOUS APPLICATION NO. 10 OF 2021

IN THE MATTER OF AN APPLICATION FOR AN APPOINTMENT OF

GUARDIAN AD LITEM FOR AFO (A PERSON OF UNSOUND MIND)

ZAFO......................................................................................APPLICANT

RULING

Brief Facts

1. This application dated 28th July 2021 invokes Order 32 Rule 3(2) & Rule 15 and Order 51 Rule 1 of the Civil Procedure Rules and Section 26 of the Mental Health Act, Cap 248 Laws of Kenyaand seeks the following prayers:-

a) That this court do appoint the applicant as Guardian ad Litem of AFO, the subject herein in respect of Civil Case No. 247 of 2019 to enable the applicant address the court as per Order 7 Rule 1 of the Civil Procedure Rules;

b) That an order do issue to adjudge that the 2nd defendant is not fit to defend himself in respect of Nyeri CMCC No. 247 of 2019 due to his mental illness.

2. The application is supported by the affidavit of Z A. F. O. The applicant is an adult of sound mind and the daughter to the subject. The applicant contends that the subject was first diagnosed with dementia coupled with psychosis on 9th November 2017 and continues to suffer with the said illness to date. The subject also suffers from Diabetes Mellitus, hypertension and fractures on the right and left hips. The applicant states that due to the illness, the subject is unable to perform normal activities and he has been on home care in Nairobi for the last two (2) years.

3. The subject is one of the defendants in CMCC No. 247 of 2019 and the applicant avers that he is unable to conduct his defence in the said case as a result of his progressive dementia/psychosis.

Issues for determination

4. Two main issues for determination do arise in this application:-

a) Whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248.

b) Whether the applicant should be appointed as guardian to the subject.

The Law

Whether the subject should be declared as suffering from mental disorder pursuant to the Mental Health Act, Cap 248.

5. The Mental Health Actprovides 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.

6. Section 2of 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.”

7. 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; 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 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.

8. The Medical Report by Dr. Pius Kigamwa states that the subject is suffering from dementia with psychosis and he has poor cognitive functions rendering him fully dependent on others. Dr. Pius Kigamwa is a psychiatrist currently practicing in Aga Khan Hospital.

9. It is apparent from the doctor’s report that the subject is suffering from a mental disorder as per Section 2 of the Mental Health Act and further that due to a medical condition contemplated under Section 26 of the Act he is incapable of managing his own affairs. The doctor’s report is thus conclusive on the mental status of the subject. No evidence to the contrary has been produced.

Whether the applicant should be appointed as guardian to the subject.

10. As noted above, Section 26 of the Act gives court the power to make an order regarding management of the estate of any person suffering from mental disorder to any relative or any person suitable though preference will be given to a relative.

11. The applicant has stated that she is the daughter of the subject and has filed a Supplementary Affidavit sworn by her sister who confirms that their father suffers from dementia and that she consents to the applicant been appointed as guardian of the subject. I also note that there is no evidence or record challenging the granting of the prayers sought in the application. Being a daughter of the subject, the applicant is thus a close relative of the subject.

12. I have perused the report by Dr. Pius Kigamwa who examined the subject and confirmed that he has no testamentary capacity as well as the other treatment records annexed to the application. A plaint in CMCC No. 247 of 2019 has been annexed to prove the existence of the said case. I am of the considered view that the applicant has satisfied this court that the subject is incapable of conducting his defence in the case against him in Nyeri CMCC No. 247 of 2019. I find the application merited and it is hereby allowed in the following terms:-

a) That the defendant herein is hereby declared incapable of conducting his defence in Nyeri CMCC No. 247 of 2019

b) That the applicant herein is appointed guardian ad litem to represent the defendant in the said case.

c) That there will be no order as to costs.

13. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 3RD DAY OF MARCH, 2022.

F. MUCHEMI

JUDGE

RULING DELIVERED THROUGH VIDEOLINK THIS 3RD DAY OF MARCH, 2022.