[2024] KEHC 13551 (KLR)

In re AMA (Miscellaneous Application E021 of 2024) [2024] KEHC 13551 (KLR) (18 October 2024) (Ruling)

Neutral citation: [2024] KEHC 13551 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Application E021 of 2024

TA Odera, J

October 18, 2024

IN THE MATTER OF AN APPLICATIQN/PETITION UNDER SECTION 2, 26,27 & 28 Of MENTAL HEALTH ACT CAP 248 AND IN THE MATTER OF ORDER 32 RULE 15 OF THE CIVIL PROCEDURE ACT CAP 21 LAW OF KENYA AND THE CIVIL PROCEDURE RULES AND IN THE MATTER A.M.A (PERSON SUFFERING FROM MENTAL DISORDER) AND IN THE MATTER OF AN APPLICATION BY

Between

SBM

1st Applicant

KMK

2nd Applicant

JNM

3rd Applicant

IMM

4th Applicant

ENM

5th Applicant

JKM

6th Applicant

LBM

7th Applicant

AKM

8th Applicant

and

BAM

1st Respondent

LBM

2nd Respondent

Ruling

Introduction 1. The Applicants herein vide a petition dated 26th February, 2024 filed under sections 2, 26 and 27 of the Mental Health Act Cap 248 as read together with order 32 rule 15 of the civil procedure rules approached this court seeking the following orders;a.A declaration that the subject, AMA is suffering from a mental disorder as defined under the Mental Health Act Cap 248 Laws of Kenya;b.That the petitioners be appointed as the managers of the estate of and all the affairs of the interested party.c.That the petitioners be appointed as guardians of the subjectd.That the petitioners be granted access to the funds in the estate of subject to help him in offsetting the high costs incurred in his ongoing treatment and to offset an outstanding bank loan and to also to take up litigation pending in various courts and general management of his estate.

2. The Petition was supported by the affidavit of M.KM the 2nd Petitioner/Applicant herein who averred that she had obtained authority of her co-petitioners to swear the affidavit on their behalf. She averred that the subject was a businessman who owns several properties among them being the following land parcels and motor vehicles;a.West Kitutu/Mwamonari/396b.West Kitutu/Mwamonari/1599c.Kitutu Mwagichana/2150d.Kitutu Mwagichana/2145e.Kitutu Mwagichana/2887f.Daraja Mbili /902g.Daraja Mbili /821h.Kisii Town Block 11/115i.Kisii Town Block 11/117Vehiclesa.Tipper KBP 702b.Mercedes KUM 821c.Toyota Pickup KATd.Toyota Pickup KAY

3. She further averred that the properties she had alluded to included proceeds from coffee, tea and rental income which require sharpness of mind. She also averred that apart from the above property, the interested party has an active case in court being ELC Case No. 1133 of2016 which case may lead to an auction of his property. She contended that the interested party cannot adequately and properly manage the said case given his condition.

4. She averred further that they have received reply from the bank involved in the ELC case to asking them to make payment of about Kshs. 3,000,000 in order to forestall the case and stop an eminent auction but they cannot proceed to engage the bank without a legal standing.

5. This court vide its ruling dated 6th March, 2024 appointed, MKM, IMM and BAM as guardians ad litem to the estate of the subject

6. LBM, a son to the subject filed an application dated 29. 4.24 seeking stay of the orders issued on 6th March, 2024 appointing, MKM, IMM and BAM as guardians ad litem to the estate of the subject based on the grounds that they subject father was not mentally incapable of running his own affairs. He also claimed that the Application was filed without involving him and further pointed out that his father had granted him a power of attorney to assist him in recovering a property of his that was about to be sold in a public auction. He claimed that the power of attorney was not availed to court when at the time of issuing the orders. He claimed further that he and his elder brother were taking care of their father and had been helping him manage his property well. He claimed too that the medical report in support of the Application was prepared by a clinical officer and thus the same could not be relied adjudge the subject as mentally incapable of running his affairs He claimed the Petitioners were only interested in the property of their father during his life time in the pretext of seeking to be his guardians. He claimed too that as a result of the orders of the court issued on 6th March, 2023 subject had been rendered destitute. He also claimed that BAM, was in support of his Application.

7. On 5th June, 2024, on orders of this court subject appeared in court for examination. While he responded well to the questions that were posed to him, he did understand why he had come to court and asked to be told why he was in court.

8. The court on 10th June, 2022 upon considering the Application dated 29th April, 2024 and the arguments of their learned counsels issued the following orders;a.This is a family matter and so it is referred to court annexed mediation.b.The subject be escorted to Kisii County Referral hospital for detailed mental assessment by a Psychiatrist who is a medical Doctor other than Dr. Benjamin Oonge.c.Orders dated 6. 3.24 are hereby stayed. Power of Attorney dated 3. 6.22 in relation to the subject is also stayed pending the hearing and determination of the applications herein.d.The matter be mentioned on 25. 6.24 at 11. 30 am for further directions on hearing after filing on the medical report and incase the mediation fails.e.Mention on 12. 6.24 before Hon. Omwansa for allocation of a mediator.

9. On 24th July, 2024, the Applicants/Petitioners once again filed an application seeking a review of the orders of the court issued on 10th June, 2024 and an order directing that all rent from tenants, funds proceeds emanating from the businesses and assets of the subject be directed to a joint account the name opened pursuant to the orders of issued on 6th March, 2024.

10. They alleged that the BAM in collusion with LBM (the respondents herein) had after the stay of orders directed tenants not to channel the proceeds to the joint account and directed them to channel the money to their own personal account. They claimed that the two had tried to cajole subject through relatives to keep daughters out the management of the estate of the subject a move that was likely to be open door to wastage of the estate. The Application was opposed by both BAM and LBM. The applicant decried that as a result of the actions of the two, there are outstanding medical bills to the tune of Kshs. 31,000 that are yet to be paid. They claimed that it had become so difficult for them to continue paying the outstanding loan. They claimed too that all tenants had not paid rent as result of the court as a result of the confusion cause. They stated the management of the business had become effective immediately the court issued appointed guardians ad litem.

11. This court vide its ruling dated 31st July, 2024 upon considering the Application, the reply thereto and the oral submissions by counsel for the parties ordered for the operationalization of the joint account pending the hearing and determination of the Application. The Court however encouraged the parties to continue pursuing mediation.

12. On 13th August, 2024, the Subject filed an Application seeking this court sets aside all interim orders given on 6th March, 2024, 10th June, 2024 and 31st July, 2024. In the alternative the subject sought for striking out the Petition dated 26th February, 2024. In support of his Application, the subject contended that he was not suffering from any mental disorder and thus he is capable of handling his affairs. He claimed that upon the petitioners obtaining the interim orders they had converted his rental income to their own bank account leading to the suffering of his business.

13. He claimed that upon learning of the interim court orders he instructed his two sons, LBM and BAM, to apply to have the interim orders set aside so that he could be allowed to continue running his business on his own. He stated that he was asked to appear in court on his own and he duly complied but the court directed that he be taken to a psychiatrist for examination. He stated that he has trained his sons namely LBM and BAM on the important aspects of his business and has been instructing them on what to do whenever he is indisposed.

14. He averred further that he runs his own business account at ABSA Bank-Kisii branch to which he instructed his clients to be depositing his money in. He however was informed by his son LBM that this court had directed his proceeds of his businesses to be deposited in a joint account in the names of the Applicants subject to investigations to his mental capacity which has now been ascertained by two consultant psychiatrists. He attached two psychiatrist assessment report prepared by Benjamin Oonge and Dr. Munaru to support his assertions that he was not mentally impaired.

15. In response to the Application, the Applicant reiterated that the subject was suffering from dementia and thus he had no capacity to swear the Affidavit. they claimed that the subject lives with the 8th Applicant who is the wife and thus she was the only one who could authoritatively give an over view of the mental status of the subject and not the BAM and LBM who attempted in their affidavit to depone in support the assertion in the affidavit purportedly sworn by the subject in his Application.

16. The court directed that the two Application dated 24th July, 2024 and 13th August 2024 be disposed of together by way of written submissions given that they all related to the mental capacity of the subject in running his own affairs. The court further directed the parties to file their written submissions and the parties to appear in court on 19th September, 2024 for highlighting of submissions.

17. On 19th September, 2024, the learned counsel for the parties highlighted their submissions. Ms. Okal for the applicant that all the reports filed in court pointed towards a man who has dementia. She contended that in reference to his dementia there was a report indicating that he is unwell and not fully recovered. Referred the court to a report attached to the affidavit of 8th applicant which confirms that the subject has dementia. She also pointed out that the Applicant had also referenced WHO facts sheet to highlight the signs of dementia.

18. Ms. Okal submitted further that the averment by the 8th Applicant that the subject had no capacity to depone the affidavit in support of his application was not challenged. She equally submitted that respondents tried to depone to that issue but they are not the subject. She contended that the 8th applicant lives with the subject but not the other applicants and thus any issue raised on the health and well-being of the subject could only be canvassed by the 8th applicant who indeed deponed that he had dementia.

19. The learned counsel equally submitted that the Power of Attorney issued on 3. 6.22 was only specific to case relating to land no. Kisii/Municipality /11/117 and thus it did not donate power to manage all the affairs of the subject. She contended that in fact the said power of attorney confirmed that the subject is slowly going through dementia. She wondered why the subject would give a specific Power of Attorney for management of his property if in deed he was capable of managing his affairs.

20. The learned counsel further argued that the management of the subject's property was going on very well with proper documentation after the court issued its orders on 6th March, 2024. She submitted also that applicants saved property which was up for sale with their own money which has not been reimbursed to date. She disclosed that the subject property which was the subject of the Power of Attorney is the same property which the Applicant managed to save from auction without the help of the respondents. She wondered why the respondents were insistent that it was only the sons of the subject who can be included in the management of the properties of the subject. The learned counsel thus urged the court to allow the Applicant’s Application dated 24th July, 2024.

21. Mr. Gichana, learned counsel for the subject submitted in considering the issue of mental status of a subject, one must determine if all the person is not capable of taking care of his privacy and whether that can affect other persons. He contended the Applicant had not established that. He contended too that mild dementia cannot stop the subject from making his own judgments, he is aware of his surroundings. He further contended that section 26 of the Mental Health Act does not apply to him. The learned counsel submitted further that the subject has sworn the affidavit and has been running his affairs and even paid legal fees and thus he did not know how he could take instructions from a person with mental disability.

22. Mr. Gichana further submitted that the constitution does not allow interference with property of a person and thus urged the court to all the subject to run his business the way he wants. He underscored that it did not mean that the subject does not want the daughters but instead he only wants to run the affairs with the assistance of his sons. Mr. Gichana pointed out that the subject gave a specific Power of Attorney to one of his son directed the Kisii Municipality .11/117. He submitted that the said property was not saved by petitioners. He stated that same was saved by the Court of Appeal which issued an injunction. He thus contended that it was the son who moved to save the property.

23. Mr. Gichana revealed that there is a 2nd Power of Attorney for running his business which is not registered. He argued that registration of a general power is not mandatory. Mr. Gichana submitted. The learned counsel submitted too that two sons are assisting the father to run his businesses. He contended that that is what the subject wants and the court should not interfere with his running of his affairs. The learned counsel contended that the management has always been done with the subject and the sons and the property was saved by payment of the loan the subject was not happy as he was opposed to payment of the loan.

24. He urged the court to allow his Application dated 13th August, 2024 to be allowed.

25. I have carefully considered this the two Applications, the Affidavits filed by parties in support of the applications, the inquiry conducted by this court on the subject on 5th June, 2024 as well as the submissions of the counsel for the parties.

26. Section 2 of the Mental Health Act defines a person suffering mental to be a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse. Section 26 of the Mental Health Act, Cap 248, Laws of Kenya provides for the circumstances under which a Court may make orders for the Guardianship of a Subject (Patient) and the management of their affairs 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.

27. I have seen the undated medical report prepared by Dr. Benjamin Oonge a consultant psychiatrist at Glory Mental Health and Psychiatrist services Ogembo. He found that the patient has some cognitive impairment, understands current situation but has difficulty in recent memory and quickly forgets. He also found that the patient wished that be assisted by his sons to control his income. The doctor concluded that the patient was developing dementia but was still capable of some undertaking some tasks and make independent decisions when called upon to do so. This court called for a medical report by a Government Psychiatrist dated 1. 8.24 report by Dr. Gideon Munaru a consultant psychiatrist was availed. Dr. Munaru agreed with Dr. Oonge that the patient has a poor immediate memory but his short term and long term memory was intact. Also that he has good judgment, general knowledge or his surroundings and has a partial insight into his conditions. He also found that the patient had mild dementia and he proceeded to put him on medication. Mr. Rodgers Omuya a clinical psychiatrist at Kisii County Referral Hospital in his report dated 16. 2.24 indicated that the subject has been their hypertension and diabetes patient since the year 2020 and that he was also diagnosed with Alzaheimer’s dementia. He concluded that the patient has a poor short term memory, poor cognition and circumstantially and that his mental wellbeing has been deteriorating and has affected his ability to manage his properties. The 8th Applicant in her supplementary affidavit attached the latest discharge summary of the subject dated 30. 8.24 which clearly indicates that the subject was suffering from memory lapses. She is the spouse of the subject and her daily care giver. The capacity of Mr. Rodgers to make the medical report was questioned by counsel for the respondents in their submissions.1. Section 26 (6) (b) of the mental health Act provides that: -“The court may, in order to have a report of the mental capacity and condition of such person in relation to whom the application is made, require the person to present themselves at a place and time appointed by the court, for the—(a)court to examine the person; or(b)person to be examined by a qualified registered mental health practitioner.Section 2 of the mental health Act defines a mental health practitioner as:-(a)psychiatrist under the Medical Practitioners and Dentists Act (Cap. 253);(b)medical practitioner under the Medical Practitioners and Dentists Act;(c)psychologist under the Counsellors and Psychologists Act (No. 14 of 2014);(d)clinical officer under the Clinical Officers (Training, Registration and Licensing) Act (Cap. 260);(e)counsellor under the Counsellors and Psychologists Act; and(f)psychiatric nurse under the Nurses Act (Cap. 257);

28. Rodgers Omuya signed the report as a clinical psychiatrist as per the report. The qualification of the said clinical officer has not been challenged. It is Clear to me that he falls within the definition of mental health practitioners under section 2 (d) of the Mental Health Act and was thus competent to make the report.

29. I note that Dr. Oonge and clinician Omuya delved into the issue of management of properties in their reports which is not in their place as that is an issue to be determined by the court under the Mental Health Act as it is not a medical issue.

30. This court ordered that the subject be availed in court and he was indeed produced. The court interviewed him and he looked, well kempt, jolly and he understood his surroundings but said he did not understand why he was in court. I have carefully re-considered the issue of whether the subject is suffering from mental illness, the medical reports and the examination of the subject in court and the able submissions by counsel on this point and the admission by the subject in his supporting affidavit filed in support of his application dated 13. 8.24. From the 3 medical reports filed herein, it is clear that the doctors concur that the subject is suffering from mild dementia that is interfering with his cognitive memory. I have no doubt that the patient is suffering from mild dementia under Section 2 of the Mental Health Act.

31. On whether the subject is able to manage his affairs, Hon. Justice Riechi In re KN (Subject) (Miscellaneous Application E103 of 2023) [2024] KEHC 3321 (KLR) (Civ) (9 April 2024) (Judgment) faced with similar circumstances as in this case observed as follows:“From the medical evidence of Dr. Ndege and Dr. Wabwire, the Subject is suffering from a condition called Dementia but mild in nature. The Respondent who stays with the Subject confirms that the condition which is exhibited by forgetfulness is deteriorating with time.21. Mental Illness are health conditions which is reflected by changing emotions, thinking or behavior. Mental illness takes many forms. Some are mild and only interfere in limited ways with daily life. Other Mental conditions are so severe that they may need care in hospital or assistance of a care-giver. In relation to the subject, it is evident that though he suffers from dementia which is a mental illness, the same is mild and limited to forgetfulness. It has not prevented him from taking care of his daily actions. He is capable of managing himself with daily activities. He is not dangerous to himself or to others or likely to act in a manner offensive to Public decency. His dementia however affects his ability to manage complex activities including complex business decisions and activities.22. Where a court during its enquiry finds that the Subject suffers from mental illness which is mild as to enable him take care of his daily activities, but is unable due to the illness to manage efficiently the activities of his estate, the court can make orders for management of the estate. This is necessary to prevent waste and mismanagement and safeguard the assets. This is from the realization that not all mental illnesses reach the statutory threshold of impairing one’s ability to take care of himself. Where it is shown that the said person needs a guardian or manager to help manage the estate, the Court will make the orders.” (Emphasis mine)

32. I have carefully evaluated the medical reports herein and the examination of the subject in court and the able submissions by counsel herein. The common denominator in the said medical reports is that the subject poor short term memory. I have no doubt that his condition does not affect his ability to manage himself and he is not a danger to himself or the community. Can a person with poor short time memory loss effectively manage his business including bank transactions without any interference or losses? The petitioners say the subject is not able to manage his affairs and that it is the respondents not the subject who answered the questions of administration which they raised. The respondents said the subject prefers to work with them as opposed to the petitioners and that he even donated a power of Attorney to the 1st respondent to represent him in the land case and general power of Attorney to both of them. This position is supported by the subject in his application dated 13. 8.24 equally as pointed out by the learned counsel for the petitioners the fact that the subject through a specific power of attorney appointed the 2nd Respondent, LBM limited to him representing him in ELC case demonstrates that his estate is in need of protection by way of appointment of managers or guardians to aid him in the management of his business.

33. The Subject’s learned counsel argued that there was a general power of attorney issued by the subject to his sons to help him in the management of his business which required no registration. The said power of Attorney was not exhibited in court and it is trite law that all powers of Attorney must be registered to give them legal effect. Further that Section 4 (1) of Registration of Documents Act provides that: -1)“All documents conferring, or purporting to confer, declare, limit or extinguish any right, title or interest, whether vested or contingent to, in or over immovable property (other than such documents as may be of a testamentary nature) and vakallas shall be registered as hereinafter prescribed:….’’ The alleged unregistered power of Attorney is thus unenforceable.

34. This court also notes that the respondents did not at all challenge the Applicants averment that there are pending medical bills of the subject and a default in the repayment of the loan issued to the subject by cooperative bank. In fact, it was admitted that the mortgaged property was rescued by the Court of appeal which issued an injunction against the bank. It is clear to me that the estate of the subject was in a crisis due to his said condition. I thus find that the subject is not able to make decisions on management his estate due to the said mild mental disorder. The estate of the subject is thus in need of protection from losses and wastage at this point this court must invoke the provisions of section 27 (2) of the Mental Health Act.

35. On who is fit to manage the estate of the subject, it is not disputed that he has 9 children. The respondents say that they are the preferred managers while the petitioners accuse them of mismanaging this estate and they seek that their mother and one of the respondents to be appointed as managers of the said estate. In this case the best interest of the subject and his estate are paramount. From my findings herein above, the allegation that the subject prefers his only sons to manage his estate cannot stand. The petitioners and the respondents are all entitled to ensure that the best interest of the subject is achieved as interested parties. Article 27 of the Constitution of Kenya provides: - 27. (1)

36. Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms. (3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. (5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). The petitioners and the respondents have equal rights to manage the estate of the deceased and none of them should be discriminated on the grounds of their gender. It is not disputed that the 8th petitioner who is the wife to the subject has been taking care of him whenever he is unwell and is thus fit to be his guardian. It is also important that she be assisted by one of the children and I thus find the proposal to appoint one respondent and their mother as managers of the estate to be just, fair and will serve the best interest of the subject and his estate. In the upshot the application dated 13. 8.24 filed by the subject fails and the one by petitioners dated 24. 7.24 partially succeeds.

37. In the best interest of the subject and his estate, I proceed to review the orders made on 6. 3.24 and the subsequent orders and the make the following orders:a.A.M.A the subject herein is hereby is declared to be suffering from a mild mental disorder under Section 2 of the mental Health Act.b.The estate of the subject herein is in need of protection to avoid losses and wastage.c.A.M and B.A.M are hereby appointed as the managers of the estate of A.M. the subject herein.d.The unregistered general power of Attorney allegedly issued by the subject to the respondents is unenforceable.e.They shall administer the estate faithfully and in the best interest of the subject.f.The said managers shall ensure that the subject gets the best treatment for his medical conditions.g.The subject and his wife be maintained wife to the subject be maintained from the proceeds of estate.h.The managers shall be the joint signatories of all the bank accounts of the subject.i.The proceeds of the estate of the subject be deposited in the subject’s ABSA Bank Kisii Branch Account 0081083XXXX.j.The monies in the Co-operative Bank account no. 011001741XXXX be transferred to the subject’s ABSA Bank Kisii Branch Account 0081083XXXX be transferred to the subject’s ABSA Bank Kisii Branch Account 0081083XXXX and the account be closed.k.The managers shall ensure that the liabilities of the subject are effectively taken care of.l.The managers shall give quarterly financial reports of the management of the estate of the subject to the family.m.Any expenses incurred by the petitioners for treatment of the subject be refunded to them subject to production of receipts.n.The advocates each party be paid reasonable fees from the estate of the subject.o.Each party to bear his own costs.p.This file is closed as this ruling has determined all the issues raised in the petition, application dated 29. 4.24 and application dated 13. 8.24 and all the concerns of the parties.30 days right of appeal

TA ODERAJUDGE18. 10. 24DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF:Miss Okal for PetitionersN/A for RespondentsBosire Gichana for the SubjectCourt Assistant - Oigo