[2018] KEHC 860 (KLR)
The court found that DAO is afflicted by illness to an extent that she is incapacitated to make competent and rational decisions regarding her affairs. Medical evidence and disability registration substantiate her condition. The applicant, as DAO's sister, has undertaken to care for her, and all other siblings have...
Source-derived case information.
- Citation
- [2018] KEHC 860 (KLR)
- Parties
- Applicant: CAO; Respondent: DAO
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 10 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Appointment of Guardian and Manager
- Outcome
- Application allowed. Applicant appointed as guardian and manager of DAO's affairs.
- Judges
- AG Ndung'u
- Legal Topics
- Mental Capacity, Guardianship, Disability Rights, Appointment of Manager
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
CAO
Applicant
DAO
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Appointment of Guardian and Manager
Legal Issues
- 1 Whether DAO is mentally incapacitated and incapable of managing her own affairs.
- 2 Whether the applicant, as DAO's sister, should be appointed as guardian and manager of DAO's affairs.
- 3 Whether the appointment is in the best interests of DAO.
Ratio Decidendi
The court found that DAO is afflicted by illness to an extent that she is incapacitated to make competent and rational decisions regarding her affairs. Medical evidence and disability registration substantiate her condition. The applicant, as DAO's sister, has undertaken to care for her, and all other siblings have consented to the appointment. The court determined that appointing the applicant as guardian and manager is merited and in the best interests of DAO, satisfying the requirements under the Mental Health Act. Accordingly, the application was allowed as prayed in respect of the substantive orders sought.
Court Disposition
Application allowed. Applicant appointed as guardian and manager of DAO's affairs.
Orders
- The applicant is appointed guardian of DAO.
- The applicant is granted care, control, and custody of DAO.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISCELLANEOUS APPLICATION NUMBER 10 OF 2018
IN THE MATTER OF AN APPLICATION BY CAO
AND
IN THE MATTER OF DAO
AND
IN THE MATTER OF THE MENTAL HEALTH ACT CAP 248 LAWS OF KENYA
RULING
1. By way of notice of motion dated 20th July, 208 and filed in court on 20/7/2018 CAO (applicant) seeks orders;
1. THAT this application be certified as urgent, service be dispensed with and heard ex-parte in the 1st instance.
2. THAT this Honourable Court be pleased to appoint the Applicant herein guardian of the said DAO.
3. THAT this Honourable court be pleased to place the care, control and custody of the said DAO under the Applicant herein.
4. THAT this Honourable Court do issue an order allowing the Applicant herein to manage all the affairs of DAO.
2. The application is predicated on the supporting affidavit of the applicant and on grounds;
a. DAO is mentally indisposed and incapable of managing her own affairs.
b. The medical evidence shows that DAO is suffering from Cerebral Palsy Spastic type as well as Convulsive disorder due to cerebral palsy as a consequence of where her intellectual performance is below average not as expected.
c. Similarly DAO is a person living with disability as confirmed with NATIONAL COUNCIL FOR PERSONS WITH DISABILITIES which has made her completely immobile.
d. The said DAO is not expected to recover from her present condition.
e. As a consequence of the foregoing the said DAO is incapacitated to make competent decisions with respect to the estate.
f. The Applicant, being the sister, undertakes to properly and diligently take care of the said DAO.
g. The other siblings of DAO have consented to the appointment of the Applicant.
h. It is in the best of the estate that the Appointed manager thereof.
3. The gist of the application is that DAO (subject) is a sister to the applicant. Medical evidence presented as an annexture to the supporting affidavit shows that she is known to have celebral palsy spastic type. She also has a convulsive disorder which is most likely due to celebral palsy.
4. Annexed to the supporting affidavit too, is evidence of registration of the subject with the National Council For Persons With Disabilities.
5. The applicant avers that as a consequence of the foregoing, the subject is incapacitated to make competent decisions with respect to her affairs. She is incapable of signing the consent to confirmation of a grant in a matter before court that affects her.
6. The applicant undertakes, as a sister to the subject, to properly and diligently take care of the subject.
7. A consent by the other siblings of the subject is duly signed and filed herein.
8. I have carefully considered the application and the evidence in support thereto. It is clear that the subject is afflicted by illness to an extent that she is incapacitated to make competent and rational decisions in respect of her affairs.
9. The other persons close to her in life are siblings who have consented to the applicant who is a sibling to taking care of the affairs of the subject.
10. I am satisfied that the orders sought are merited and in the best interests of the subject.
11. I allow the notice of motion dated 20/7/2018 in terms of prayers 2, 3 and 4. Costs of the motion shall be in the cause.
Dated and Delivered at Nakuru this 13th day of December, 2018.
A. K. NDUNG'U
JUDGE