[2018] KEHC 6288 (KLR)
The court found, based on uncontroverted medical evidence and the testimony of the petitioner and other children, that F A A is suffering from a mental disorder due to advanced age and illness, rendering him incapable of managing his affairs. The Mental Health Act empowers the court to appoint a guardian and manager...
Source-derived case information.
- Citation
- [2018] KEHC 6288 (KLR)
- Parties
- Applicant: D O A; Respondent: F A A
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 60 of 2018
- Procedural Posture
- Petition / Judgment
- Outcome
- Petition allowed. Petitioner appointed as guardian and manager of the estate of F A A.
- Judges
- DN Musyoka
- Legal Topics
- Mental Capacity, Guardianship, Estate Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
D O A
Applicant
F A A
Respondent
Procedural Posture
Petition / Judgment
Legal Issues
- 1 Whether the patient, F A A, is suffering from a mental disorder rendering him incapable of managing his affairs.
- 2 Whether the petitioner, D O A, should be appointed as guardian and manager of the estate of F A A under the Mental Health Act.
Ratio Decidendi
The court found, based on uncontroverted medical evidence and the testimony of the petitioner and other children, that F A A is suffering from a mental disorder due to advanced age and illness, rendering him incapable of managing his affairs. The Mental Health Act empowers the court to appoint a guardian and manager for such a person. The petitioner, D O A, demonstrated suitability for appointment, and no objections were raised. The court therefore adjudged F A A as a person suffering from mental disorder and appointed D O A as guardian and manager of his estate, subject to periodic accounting to the court.
Court Disposition
Petition allowed. Petitioner appointed as guardian and manager of the estate of F A A.
Orders
- F A A is adjudged to be a person suffering from mental disorder.
- D O A is appointed guardian of F A A and manager of his estate and affairs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
PETITION NO. 60 OF 2018
IN THE MATTER OF SECTIONS 26, 27, 28 AND 29 THE MENTAL HEALTH ACT (CAP 248) LAWS OF KENYA
AND
IN THE MATTER OF A PETITION FOR ORDERS OF CUSTODY, MANAGEMENT AND GUARDIANSHIP RELATING TO F A A (PATIENT)
JUDGEMENT
1. The petition dated 16th May 2018 seeks the principal order that the petitioner, D O A, be appointed as the guardian, custodian and manager of the estate of F A A (hereinafter referred to as the patient), with the powers enumerated in the said petition.
2. The petition is based on affidavits with supporting facts and evidence. The affidavit of the petitioner was sworn on 16th May 2018. The patient is the father of the petitioner. It is averred that the patient is elderly, his age being stated to be 96 years, and sickly, which has rendered him incapable of taking care of himself and his personal affairs.
3. The said petition was prosecuted on 24th and 25th May 2018. The petitioner testified, and so did the non-petitioner children of the patient. They gave vent to the averments made in the papers that had been lodged in court in support of the case. I shall not recite the evidence as the same is on record.
4. The petitioner has placed on record various medical reports to support his case. They all indicate that the patient has been receiving treatment over several years for hypertension with bronchospasm and prostate cancer. The medical report by Dr Philip Omondi dated 24th May 2018, states that as a result of the illness, his advanced age and the advanced stage of the prostate cancer, the patient’s memory has been affected, and he now has episodic confusion and memory lapse. He opines that the patient is not mentally and physically able to transact any business.
5. The law which governs the handling of persons suffering mental illness is the Mental Health Act. It also provides for custody of such persons and the management of their estates. Part XII of the Act deals with the judicial power over persons and estates of such persons. Section 26 of the Act specifically provides for orders for custody, management and guardianship of such persons and their estates.
6. I am satisfied from the material before me that the patient is no longer able to manage himself and his affairs on account of mental disorder arising from the conditions that are documented in the medical report by Dr Omondi, that I have referred to above. I am also satisfied that a case has been made out for the appointment of the petitioner, as manager of the estate of the patient, who I have found to be suffering from mental disorder, and to act too as his guardian.
7. The position of the manager of the property and affairs the patient places the property of the subject in the hands of others. This would put the petitioner in a fiduciary position so far as the subject and his estate is concerned. This would make the petitioner a trustee, who then incurs the burden of accounting to both the court and to other affected persons, such as the children of the subject, with respect to the management of the said estate.
8. The orders that I feel bound to make in the circumstances are:-
(a) That the patient, F A A, is hereby adjudged to be a person suffering from mental disorder;
(b) That the petitioner herein, D O A, is hereby appointed guardian of the said patient and manager of his estate and affairs;
(c) That prayer (b) of the petition is granted as prayed; and
(d) That the petitioner shall place before court at the expiry of every three (3) months from date hereof a full and accurate account of his handling of the estate and affairs of the patient.
DATED, SIGNED and DELIVERED at NAIROBI this 31ST DAY OF MAY, 2018.
W. MUSYOKA
JUDGE