[2024] KEHC 9503 (KLR)
The court found that the subject's mental capacity is under investigation and that the estate is at risk of wastage due to lack of clarity on who is managing the proceeds from the subject's businesses and rent. The court noted that previous orders regarding the management of the Co-operative Bank Account had been...
Source-derived case information.
- Citation
- [2024] KEHC 9503 (KLR)
- Parties
- Applicant: SM; Applicant: MKM; Applicant: JNM; Applicant: IMM; Applicant: ENM; Applicant: JKM; Applicant: LBM; Applicant: AKM; Respondent: BAM; Respondent: LBM; Respondent: Andrew Mokaya Angwenyi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E021 of 2024
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Interim Management of Estate Pending Interpartes Hearing and Mediation
- Outcome
- Interim orders granted for operationalization of the Co-operative Bank Account pending interpartes hearing and mediation.
- Judges
- TA Odera
- Legal Topics
- Mental Capacity, Guardianship, Interim Orders, Estate Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SM
Applicant
MKM
Applicant
JNM
Applicant
IMM
Applicant
ENM
Applicant
JKM
Applicant
LBM
Applicant
AKM
Applicant
BAM
Respondent
LBM
Respondent
Andrew Mokaya Angwenyi
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Interim Management of Estate Pending Interpartes Hearing and Mediation
Legal Issues
- 1 Whether the court should operationalize the Co-operative Bank Account for the subject's estate pending hearing and mediation.
- 2 Whether the subject's mental capacity has been sufficiently determined to warrant restriction of access to his accounts.
- 3 Whether interim measures are necessary to prevent wastage of the subject's estate.
Ratio Decidendi
The court found that the subject's mental capacity is under investigation and that the estate is at risk of wastage due to lack of clarity on who is managing the proceeds from the subject's businesses and rent. The court noted that previous orders regarding the management of the Co-operative Bank Account had been stayed to allow for mediation, but mediation had taken longer than anticipated. In the absence of evidence of prejudice to the subject or any party, and in the interest of securing the estate and ensuring transparency and accountability, the court allowed the operationalization of the Co-operative Bank Account on an interim basis. The funds are to be used for the treatment and...
Court Disposition
Interim orders granted for operationalization of the Co-operative Bank Account pending interpartes hearing and mediation.
Orders
- Prayer 3 of the application is allowed in the interim: the Co-operative Bank Account No. 011XXXXX to be operationalized pending interpartes hearing and determination of the application.
- Monies in the said account to be utilized towards treatment and general welfare of the subject.
Full Case Text
Judgment text and source record
40 paragraphs
In re AMA (Person Suffering from Mental Disorder) (Miscellaneous Application E021 of 2024) [2024] KEHC 9503 (KLR) (31 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9503 (KLR)
Republic of Kenya
In the High Court at Kisii
Miscellaneous Application E021 of 2024
TA Odera, J
July 31, 2024
IN THE MATTER OF AN APPLICATION UNDER SECTION 2,26,27 AND 28 OF MENTAL HEALTH ACT CAP 248 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 OF ANDREW MOKAYA ANGWENYI (PERSON SUFFERING FROM MEANTAL DISORDER) IN THE MATTER OF AN APPLICATION BY:
Between
SM
1st Petitioner
MKM
2nd Petitioner
JNM
3rd Petitioner
IMM
4th Petitioner
ENM
5th Petitioner
JKM
6th Petitioner
LBM
7th Petitioner
AKM
8th Petitioner
and
BAM
1st Respondent
LBM
2nd Respondent
Ruling
1. I have perused the mediation report dated 30. 7.24 filed herein today. It indicates that parties have reached a partial settlement on some issue but the same is signed by only 3 parties out of 8. Even the subject who is alleged to have participated in the proceedings has not signed. I therefore cannot adopt it as an order of the court till all parties sign it. Mr. Nyambati filed his response late and Miss Nyaenya for the subject is yet to file any documents as she has just been appointed. Counsel for the applicants seek that pending interpartes hearing of the application and or mediation, the parties be allowed to deposit proceeds of the business of the applicant in Cooperative Bank Account No. 011XXXXX held in the names of BA,MK, IMM and AKM account. This has been vehemently opposed by Miss Nyaenya for the subject and Mr. Nyambati for the respondents. Miss Nyaenya told this court that her client has not been adjudged insane and wishes to run his own accounts. Mr. Nyambati also opposed the application saying that the orders will prejudice the mediation proceedings and that parties had agreed to engage a manager to open and run a petty cash account with the approval of the family members. Also that the subject was examined by the court and it proceeded to stay the orders relating to the said account.
2. I have carefully listened to the parties herein. It is not denied that the subject's mental capacity is under investigations and that the said Cooperative account was opened pursuant the orders granted on 6. 3.24.
3. On 10. 6.24 this court stayed the orders dated 6. 3.24 and the power of Attorney dated 3. 6.22 to pave way for expeditious mediation but the mediation has taken longer than expected. The estate of the subject is now left bare and is at risk of wastage. It is now 1 ½ months down the line and no party is telling this court who is collecting the proceeds of the businesses of the subject and rent and the safety of the same or if at all they being collected or not. I see no prejudice to be occasioned to the subject, his estate or any party if the said Co-operative Bank Account No. 011XXXXX is operationalized pending interpartes hearing and determination of this application as this would secure the estate and ensure transparency and accountability as rightly submitted by Miss Okal, I allow prayer 3 in the interim. The monies in the said account be utilized towards treatment and general the welfare of the subject.
4. Counsel for the subject is granted leave to file an affidavit within 7 days from today and counsel for applicants is also granted leave to file a supplementary affidavit within 7 days of receipt of the reply of the subject.
5. The matter to proceed by way of written submissions.
6. Counsel for the applicant to file and serve submissions with the supplementary affidavit.
7. Respondents and the subject to file submissions within 7 days of receipt of applicant’s submissions.Interpartes Hearing on 28. 8.24.
8. In the meantime, parties to continue to pursue mediation and it is the hope of this court that the same will succeed as this is a family matter which ought to be settled amicably.
T.A ODERAJUDGE31 .7. 24Delivered virtually in the presence of: -Miss Okal for Applicants,Miss Nyaenya for the subject and Mr. Nyambati for the Respondents.