[2018] KEHC 9364 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

MISC. CIVIL APPLICATION NO. 100 OF 2018

IN THE MATTER OF AN APPLICATION FOR CUSTODY, MANAGEMENT AND APPOINTMENT OF GUARDIANS AND ESTATE MANAGERS OVER J K K

AND

IN THE MATTER OF THE MENTAL HEALTH ACT, CAP 248, LAWS OF KENYA

AND

IN THE MATTER OF J K K, AN ELDERLY PERSON SUFFERING FROM A MENTAL DISORDER

AND

IN THE MATTER OF THE PETITION OF E M K AND G J O K

E M K...........................1ST PETITIONER

G J O K......................2ND PETITIONER

-VERSUS-

J K K...............................RESPONDENT

RULING

1. By a Petition dated 17th July, 2018 brought under sections 2, 26, 27 and 28 of the Mental Health Act (Cap 248) Laws of Kenya, the Petitioners sought orders that the court do issue:

a) a declaration that J K K, the patient herein, is a Patient and a person suffering from Mental disorder, within the meaning of section 2 of the Mental Health Act.

b) an order that E M K and G J O K do have full custody and management over J K K and are jointly and severally appointed as Guardians and Estate Managers over J K K and her estate as provided under sections 26, 27and 28 of the Mental Health Act.

2. The application is premised on the grounds that J K K, aged about 69 years suffers from recurring health problems. She was diagnosed with diabetes and developed hypertension which have cumulatively affected her cognitive functions. She has become disconnected and disoriented in time, place and person to an extent of not recognizing her own relations. That her condition necessitates constant monitoring and care as she is elderly and is incapable of taking care of herself and her estate.

3. The Petitioners aver that they both regularly care for the patient and assist in her day to day affairs. That they have even employed a house help at their own expense to care for her.

4. G K, the 2nd Petitioner, swore a supporting affidavit dated 17th July, 2018 on behalf of himself and the 1st Petitioner in which he deponed that he is a brother to E K, the 1st Petitioner herein, and that J K, the Subject herein, is their biological mother.

5. G asserted that Jane is a Patient within the meaning of section 2of theMental Health Actand is therefore incompetent to deal with her own affairs particularly on matters of health, finance and her general well-being, and matters of her estate. G observed that he and the 1st Petitioner are in stable employment and can therefore give the Patient proper attention and care in her degenerated state. George urged that it was in the interest of justice for the court to grant the 1st Petitioner and himself the sole guardianship, custody and estate management on behalf of the Patient.

6. The Petitioners have attached a Medical Report from Dr. K. Ndege, a Neurologist at Upperhill Specialist Clinics, which states that the Patient was presented with a four (4) year history of visual hallucinations, confusion, impairment in memory and seizures. On examination, the Patient was initially uncooperative and restless, and disoriented in time, place and person. She was diagnosed with dementia due to autoimmune disease, Type 2 diabetes, Hypertension and Hypothyrodism. The doctor recommended round the clock attention by a Caregiver and further that her personal and financial affairs be handled by her next of kin.

7. Learned Counsel Mr. Okenyo Omwansa submitted on behalf of the Applicants that the Subject has seven (7) children all of whom have attained the age of majority. Counsel stated that the other five (5) children have consented to the Petition and to the appointment of the two proposed guardians, who are also the co-administrators of their late father’s estate. He urged the court to grant the orders sought stating that there was no contention in the family and vouched for the two applicants.

8. I have perused the pleadings filed in this matter and heard the submissions of M/s Okenyo Omwansa for the Applicants. In view of the expert opinion of Dr. K. Ndege the Neurologist, I am persuaded that the Subject is a person who is suffering from a mental disorder as envisaged under the provisions of the Mental Health Act. She is not therefore, capable of taking care of herself and conducting her own affairs.

There being merit in the Petition dated 17th July, 2018, I hereby allow it in the terms proposed by the Petitioners.

It is so ordered.

SIGNED DATED and DELIVERED in open court this 2nd day of August 2018.

…………………………………..

L. A. ACHODE

JUDGE