[2024] KEHC 15879 (KLR)

In re DNK (Person Suffering From Mental Disability) (Miscellaneous Case E 014 of 2024) [2024] KEHC 15879 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEHC 15879 (KLR)

Republic of Kenya

In the High Court at Thika

Miscellaneous Case E 014 of 2024

H Namisi, J

December 18, 2024

IN THE MATTER OF THE MENTAL HEALTH ACT, CAP 248 OF THE LAWS OF KENYA AND IN THE MATTER OF DNK (PERSON SUFFERING FROM MENTAL DISABILITY)

Between

DNK

Subject

and

JKM

Petitioner

Judgment

1. The Petition before the Court was brought by JKM, being the brother to the Subject, DNK Although the Petition itself does not invoke any particular provisions of the Mental Health Act, the written submissions dated 28 November 2024 refer to sections 26 and 28 of the Act. The Petition is supported by the Affidavit of the Petitioner sworn on 23 August 2024, Affidavit dated 9 October 2024 by JKN, a son to the Subject and Affidavit of FWN, wife to the Subject.

2. The Petitioner seeks the following orders:i.That he be appointed Guardian ad litem for purposes of defending the suit for and on behalf of DNK in Thika MCELC E024 of 2024;ii.That the costs of this Application be borne by the estate of the said DNK.

3. It is the Petitioner’s case that the Subject has no control over his mental faculties and must delegate all his responsibilities. The Petition does not make reference to the medical condition that has afflicted the Subject, but rather infers that as a result of the medical condition, the Subject has lost his cognitive and intellectual abilities and become completely dependent on the Petitioner, who has had to get round-the-clock medical care for the Subject.

4. From the oral submissions by Counsel, the Subject is an accused person in a Criminal Matter before the Ruiru Law Courts, Criminal Case No. E047 of 2024. During these proceedings, the Court directed that an assessment be conducted to ascertain whether the Subject herein is fit to stand trial in the Criminal Case. It is this Assessment Report that the Petitioner has presented herein in support of his case.

5. In the Medical Report dated 4 November 2024 prepared by Dr. Nganga G, it is indicated that the Subject is likely to be suffering from Alzheimer’s Dementia and co-morbid Prostatism. The differential diagnosis is depressive disorder. The Doctor goes further to indicate that the Subject is not of sound mind and, therefore, unable to engage in any rational decision to have a decent living.

6. The wife, FWN, and son, JKN, both support the Petition and confirm that the Subject is not well.

7. It was directed that the matter would proceed by way of written submissions. In his submissions, the Petitioner relied on the provisions of sections 2, 26 and 28 of the Act as well as the case of Re: LKM [2022] KEHC 1317 (KLR).

8. Section 26 of the said Act states that: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

9. I have considered all the material placed before me. From the medical report, it is apparent that the Subject suffers from a mental disorder and that he is incapable of managing his own affairs.

10. The definition in Section 2 of the Act provides that:“A person suffering from mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”

11. In the circumstances, the Court makes a finding that the subject is a person suffering from a mental disorder within the definition of the Mental Health Act and hereby appoints the Petitioner as the subject’s Guardian.

12. For the avoidance of doubt, such Guardian’s general powers will not include the power of alienation, sale or transfer of any other assets held by the Subject but will include all the powers necessary for the management of such and other assets, and to plead and prosecute and/or defend any action brought by or against the Subject in respect of any of the assets forming part of his estate.

DATED AND DELIVERED AT NAIROBI THIS 18 DAY OF DECEMBER 2024HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Kimata h/b J. G. Waweru...............for the Petitioner