[2024] KEHC 13679 (KLR)

In re Estate of AFO (A person suffering from mental disorder) (Miscellaneous Application E167 of 2021) [2024] KEHC 13679 (KLR) (Family) (8 November 2024) (Judgment)

Neutral citation: [2024] KEHC 13679 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application E167 of 2021

PM Nyaundi, J

November 8, 2024

IN THE MATTER OF THE MENTAL HEALTH ACT (CAP 248) LAWS OF KENYA AND IN THE MATTER OF AFO (A PERSON SUFFERING FROM MENTAL DISORDER) AND IN THE MATTER OF AN APPLICATION BY AAFO, HNAF AND SFO TO BE APPOINTED GUARDIANS OVER THE PERSON AND THE ESTATE OF THE SAFO

Between

AAFO

1st Petitioner

HNAF

2nd Petitioner

SFO

3rd Petitioner

and

ZAF

1st Interested Party

KAF

2nd Interested Party

Judgment

1. Before this court is the Petition dated 3rd September 2021 in which the Petitioners seek the following orders; -a.The Honourable Court do issue a declaration that KAFO is suffering from mental disorder pursuant to Section 26 of the Mental Health Act, CAP 248 Laws of Kenya.b.AKAFO, HNKAF and SFO be and are hereby appointed as legal guardians to KAFO.c.AKAFO, HNKAF and SFO be and are hereby appointed managers of the estate of KAFO under Section 28 of the Mental Health Act to manage his estate including any such description of moveable or immovable property, money, debts and legacies, with a view to maintaining the said KAFO and availing his estate for his maintenance as required.d.That a permanent injunction do issue preventing the interested parties herein either acting by themselves, or through their agents, and/or employees from removing, displacing from, transferring, transporting and/or withdrawing the said KAFO from custody of the Petitioners herein who care for him at his ordinary place of residence at Adams Arcade area, Ngong Road, Nairobi.e.That a mandatory permanent order compelling the 1st and 2nd interested parties to render accounts of all the rents collected from the subject’s properties on behalf of the subject and the use thereof, and to deposit all money due to the estate of the subject herein to court.f.Such further or alternative relief as this Honourable Court may deem fit in the circumstances.

2. The Petition was supported by the Affidavit of even date sworn by the 1st Petitioner and a Supplementary Affidavit dated 29th June 2022. The matter was canvassed by way of viva voce evidence.

3. The petition was opposed by the interested parties. The 1st interested party filed an undated Replying Affidavit . The 2nd interested party’s replying Affidavit is dated 4th October 2021. They also filed the following grounds of opposition;1. That the Petitioners’ Application and entire suit are misdirected and misplaced for the following reasons;a.No finding has been made by this Honourable Court and or other competent medical authority that the Subject is suffering from mental disorder and/or that he has diagnosed a psychopathic person with mental illness and/or is a person suffering from mental impairment due to alcohol or substance abuse.b.The management of the estate of the Subject is not in need as there is in place a valid Power of Attorney issued by the Subject in February 2018 and which has not been revoked and/or extinguished.2. That there are in law other remedies available to the Applicants to challenge the Power of Attorney issued by the Subject who instead purport to pursue a very drastic order under the Mental Health Act, Cap 248 Laws of Kenya.3. That under section 18 of the Registration of Documents Ac the purported authorization issued by SFO and HNKAF respectively to AKAFO cannot be received as evidence without the consent of the court. Consequently, all the allegations made pursuant to the purported authorization to swear the Supporting Affidavit and the Affidavit in Support of Petition ought to be expunged from the record and dismissed.4. That the Applicants have not demonstrated a prima facie case that they are fit to be appointed managers of the estate of the Subject and or to be granted guardianship over the Subject as they reside outside the jurisdiction of this court and only come to Kenya from time to time.5. That if appointed manager of the estate of the Subject and due to the matters stated in paragraph 4 above, it shall be impracticable if not impossible for the Petitioner to comply with section 33 of the Mental Health Act in terms of delivery of an inventory of the properties belonging to the Subject and/or to accounts thereof.6. That the Applicants are guilty of fiduciary misdeeds and have failed to deal with the Respondents in an open and honest manner. In particular,a.Harassed, intimidated, and threatened to harm the Respondentsb.Thrown out the Respondents from the family home in Nairobi.7. That in view of the matters stated in Para 5 here above the Application is not brought in good faith.8. That the Petitioners claims are based on fraud, errors and misrepresentations.9. That the Application is incurably defective, has no basis in law and is an abuse of the court process.10. That the application should be struck out and dismissed with costs.

4. In their counterclaim, they sought the following orders;a.An order restraining the Petitioners by themselves or through their agents or servants from wrongfully evicting the Interested Parties from the family home.b.An order restraining the Petitioner by themselves or through their servants and/or agents from wrongfully shielding the Subject from Interested Parties and or alienating the Subject from them.c.An order restraining the Petitioner harassing, intimidating and or using abusive language on the Interested Parties.d.Any other relief the Court may deem just to grant.

Summary of Evidence 5. PW1, AKAFO told the court that she is the daughter of the subject. She adopted her petition and her supporting Affidavit , supplementary Affidavit and list of documents as her evidence in chief. She told the court that the subject has seven children. Her evidence was that subject needs 24-hour care. He is not well. She and the 2nd petitioner supervise the caregivers. The subject’s children and the estate meet the costs of his care. The 1st interested party had been ordered by the court to give Kshs. 100,000 to the petitioners for the care of the subject.

6. They entrusted the 1st interested party to take care of the Subject but she has failed to discharge her responsibility. She has not provided any records of how she has taken care of the subject. The subject lives in his house at Adams Arcade, Nairobi. The 1st interested party manages a farm in Nyeri, two commercial buildings in Nyeri, stalls and residential buildings in Nyeri and office space owned by the subject which generate income. Since they took over care of the subject, he has improved. She asked the court to allow them take the subject in their care.

7. In cross examination, she stated that 1st interested party at some point in 2021 neglected the subject; he started falling down. She then took over the management of his care. The subject was seen by Doctor Kimani who diagnosed him with brain atrophy. It was her evidence that the 1st interested Party has used the Power of Attorney to misappropriate funds. The 1st interested party collects income from the subject’s estate and uses it for her personal use. According to her, the 1st interested party should account to the rest of her siblings even with the power of attorney. She is only interested in the subject’s welfare.

8. The subject referred her to Dr. Kimani in 2018. She did not take the subject to Dr. Kimani. Doctor Kimani last saw the subject in 2017. Dr. Kimani is an internal medicine consultant-physician/diabetologist. Doctor Kimani referred the subject to Dr. Kigamwa for further assessment. She is not aware if the subject saw Dr. Kigamwa. She realized in 2016 that the subject was disconnected when he visited her in the USA in 2016. In 2017, he could not recognize pictures of some of his children.

9. The subject’s financial needs are not being met. The interested parties are benefiting from the subject’s estate to the exclusion of the subject. Before 2021, the deceased was being taken care of by the children who live in Kenya. Those outside the country would send money. According to her, any documents signed by the subject after 2017 were without his understanding. Hospital bills were not being paid.

10. The agent collecting rent in Nyeri works for the interested parties. She felt the interested party is misappropriating funds as she and other siblings pay for the subject’s costs. All the parties here are the subject’s children and are equal.

11. ZKAFO testified as IPW1. She adopted her witness statement as her evidence in chief. Her evidence was that the subject was in perfect mental health. Dr. Kigwama’s report states that recovery of the subject is 50%. Rent is collected by an agent appointed by the subject. The money is remitted into the subject’s account. The subject gives them allowances through the agent for their upkeep. She and the 2nd interested party are not employed. She oversees the family affairs; she supervises the Nyeri property. She denied mismanaging the subject’s estate. She signs most documents on behalf of the subject. She and the subject took a loan from Community Bank with the subject where they are both listed as borrowers.

12. The application before this court was presented in bad faith, it will destabilize the estate. The petitioners are interested in the subject’s properties. The petitioners do not live in Kenya. She and the 2nd interested party live in Kenya. She asked the court to enter judgment in terms of the counter claim.

13. During cross-examination, she stated that the subject has never been diagnosed with dementia. He showed signs of dementia in 2001; he was not speaking much. It is clear now that he has dementia. The subject executed a power of attorney in her favour in 2018. She does not use it to access his accounts. Before the power of attorney, the subject enjoined her to his bank accounts. The subject has a commercial asset at Upper Hill, a building in Nyeri a house in Ngong Road, a stall in Kenyatta market, parcels of land in Nyeri and Garissa, 2 bank accounts at Premier Bank and Standard Chartered, a pension of Kshs. 100,000 paid into his account. The agents collect rent and pay utility bills and workers. There is a standing order on the account for some of the subject’s liabilities.

14. In re-examination, she stated that lives in the subject’s house in Nyeri. She pays Kshs. 100,000 for upkeep of the subject.

15. KAF, IPW2. Her evidence was that the subject is unresponsive and needs a caregiver. She does not support the petition. All the subject’s children should have access to him. She had been taking care of the subject before the 2nd Petitioner took him. The 1st Interested party is a signatory to the subject’s account. She is unemployed and receives a stipend of Kshs. 40,000 from the estate as a gift. According to her, she is entitled to an equal share of the subject’s property. The 1st petitioner tried to evict her from the subject’s house and has been harassing her. She asked the court’s protection from eviction.

16. During cross examination, she stated that she lived with the subject. The 1st petitioner is living with the subject at the moment. The subject is not doing well under the 1st petitioner’s care. She and the 1st interested party did not apply to be guardians of the subject. There is an order that the 1st interested party do pay Kshs. 100,000 to the 1st petitioner for the upkeep of the subject.

17. In reexamination, she stated that the 1st petitioner left the country in October 2023 and came back on 9th May 2024. The 2nd petitioner also left the country for three months. She was left with the responsibility of taking acre of the subject. In 2020, the subject was being taken care of by caregivers. The subject’s bills were paid by other family members when she was stranded in Nyeri during covid.

Petitioners Submisions 18. The Petitioners identified the following issues for determination;i.Whether KAFO (hereinafter referred to as the “Subject” is a person suffering from a mental condition thereby requiring protection;ii.Whether the Petitioners should be appointed the legal guardians over the Subject’s health and wellbeing;iii.Whether the Petitioners should be appointed the legal managers over the Subject’s property, assets and holdings.

19. On the first issue, the Petitioners relying on the definition of Section 2 of the Mental Health Act submit that they had proved that the subject suffers from dementia. They submitted that Doctor Kimani Gacheru in his report dated 4th August 2021 diagnosed the subject with brain atrophy which has not been contested by the interested parties. Further, that the interested parties in their counterclaim and the answer to petition admitted that they realized in 2018 that the mental health was deteriorating. Lastly, that the court observed the subject on 21st June 2022 and certified him as a person suffering from mental illness.

20. On the 2nd and 3rd issues, the petitioners submit that the court exercises authority over a person with mental illness and is guided by Sections 27 and 28 of the Mental Health Act Cap 248 of the Laws of Kenya. They submit that the petition was necessary because the interested parties are in control of the subject’s estate but have failed, neglected and/or refused to properly care for him by paying his caregivers and by catering for his medical expenses. The court therefore issued an order that the 1st interested party do pay the 1st petitioner Kshs. 100,000 per month to enable her take care of the expenses of the subject.

21. They argue that the power of attorney was signed by the Subject when he had already been diagnosed with senile dementia, hence he did not have legal capacity to execute the said Power of Attorney. They relied on Wiltshire v Cain [1958 – 60] 2 Barb. L. R149, a decision by the Supreme Court of Barbados as cited in Grace Wanjiru Munyinyi & Another v Gedeon Waweru Githunguri & 5 others [2011] eKLR. That the interested parties in their evidence admitted to be receiving Kshs. 40,000 from the estate of the subject which according to the petitioners, the interested parties are benefiting from the subject’s estate to the exclusion of the other family members.

22. Lastly, they submitted that the court has a duty to appoint them as managers of the estate of the subject. They relied on the decision in re Estate of R N N [2017] eKLR and JWN v MWK [2020] eKLR.

Interested Parties Submissions. 23. The Interested Parties identify the following as issues for determination;a.Whether or not the Petitioners were available to attend the subject’s well- being, health needs, care and/or assist him in the management of his estate prior to the year 2018 when the subject realized that his mental capacity was deteriorating.b.Whether or not the subject did appoint the 1st interested party (IPW1) to assist him in the management of his estate.c.Whether or not the Petitioners have wrongfully and constructively evicted the Interested Parties from the family home through constant intimidation, threats and verbal written abuses.

24. The Interested Parties challenged the medical report produced by the Petitioners. They argued that Dr. Kimani Gacheru who examined the subject is not a qualified mental health practitioner. That Dr. Gacheru who is a consultant Physician Diabetologist referred the subject to Dr. Kigamwa but there is no evidence that the subject was seen by him. According to them, the Petitioners had failed to prove that the subject was suffering from mental illness.

25. It was submitted that the petitioners do not qualify to be appointed as guardians of the estate. It was their contention that the Petitioners do not live in Kenya. The subject needs proper management which cannot be achieved if the Petitioners are not in the country. Also, that the other Petitioners did not testify because they are not interested in the affairs of the subject.

26. They submitted that the subject donated power of attorney to the 1st interested party to manage his affairs. They argued that the subject was in good health when he signed the power of attorney. The subject ordered the agents to pay an allowance to the interested parties.

27. They urged the court to find that the petitioners are not fit to be appointed legal guardians of the subject.

Analysis and Determination. 28. Both parties conceded that the Subject is not fully cognitively sound

29. Section 2 of the Mental Health Act defines a ‘person with mental illness’ as ‘a person diagnosed by a qualified mental health practitioner to be suffering from mental illness…’

30. A mental Health practitioner is defined to mean a qualified and duly registered-a.psychiatrist under the Medical Practitioners and Dentists Act;b.medical practitioner under the Medical Practitioners and Dentists Act;c.psychologist under the Counsellors and Psychologists Act;d.clinical officer under the Clinical Officers (Training, Registration and Licensing) Acte.counsellor under the Counsellors Psychologists Act; andf.psychiatric nurse under the Nurses Act

31. Notwithstanding the protestations of the interested parties, Dr. Kimani Gacheru although not a psychiatrist is competent to make such a finding as he is qualified under Sub Clause (b), his report dated 4th August 2021, partly states as follows;…In October 2017, he was brought to me for forgetfulness and hallucinating. On clinical assessment he was found to have senile dementia. A brain CT scan showed that he had brain atrophy. He was referred to Doctor Kigamwa for further assessment and follow up. Over the years, his mental status has slowly but progressively deteriorated. As of now he is not able to look after himself. He is fully dependent on his children.

32. Finally, when the Subject was presented virtually before Court on 21st June 2022, Hon Thande J observed that he was not responsive and that both parties agree that the subject is suffering from dementia and is unable to manage himself and his estate. I find therefore that there is sufficient evidence to find that the subject suffers from mental illness.

33. Having declared that the subject is suffering from mental illness, I now proceed to determine management of the estate of the subject. I would add that this finding of mental illness immediately terminates the power of attorney said to have been executed by the Subject.

34. Where a court during its enquiry finds that the Subject suffers from mental illness and is unable due to the illness to manage efficiently the activities of his estate, the court can make orders for management of the estate. This is necessary to prevent waste and mismanagement and sKAFeguard the assets. Where it is shown that the said person needs a guardian or manager to help manage the estate, the Court will make the orders.

35. Section 26 of the Mental Health Act, Cap 248 provides for the circumstances in which a Court may make orders for the management and maintenance of a Patient (Subject) as follows: -“Order for custody, management and guardianship(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)Where upon 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.” [own emphasis]

36. From the evidence adduced in court, it is evident that the Subject is mentally unstable. I am satisfied that the Subject is not able to manage himself or his estate. The 1st Petitioner and the interested parties are not in agreement on who should be appointed as the manager and legal guardian of the subject. The subject is currently under the care of the 1st petitioner. The interested parties indicated to the court that the petitioners do not reside in Kenya and they are therefore best suited to be appointed as legal guardians and managers.

37. The court takes note that the subject is the father to both the Petitioners and the Interested parties. In my view the welfare of the Subject will be best managed by his children.

38. In respect of managing the estate of a person found unable to manage his estate due to mental disorder, the law under Section 27(1) provides that:Power of manager in respect of estate1. Where a manager is appointed under this Part, the court may order that the manager shall have such general or special powers for the management of the estate as the court considers necessary and proper regard being had to the nature of the property whether movable or immovable, of which the estate may consist:Provided that (i) a manager so appointed shall not, without the special permission of the court—(a)mortgage, charge or transfer by sale, gift, surrender, exchange or otherwise any immovable property of which the estate may consist;(b)lease any such property for a term exceeding five years; or(c)invest in any securities other than those authorized by section 4 of the Trustee Act (Cap. 167);(ii)no manager may invest any funds belonging to the estate of which he is manager in any company or undertaking in which he himself has an interest, nor on the purchase of immovable property under the authority of paragraph(d)of section 4(1) of the Trustee Act without the prior consent of the court.

39. The Mental Health Act has adequate provisions on the guardianship and management of a person found to be suffering a mental disorder and his/her estate. For instance, Section 27, cited above, provides for powers of such a guardian and manager. Secondly, Section 33 of the Act requires accounting by such manager. It provides that:Manager to furnish inventory and annual accounts 31. (1) Every person appointed by the court to be manager of the estate of a person under this Part shall, within six months of the date of his appointment, deliver to the court and to the Public Trustee (to whom he shall pay such fee as may be prescribed) an inventory of the property belonging to the person of whose estate he has been appointed manager and all such sums of money, goods and effects as he receives on account of the estate, together with a statement of all debts owed by or due to such person, and every such manager shall furnish to the court and to the Public Trustee (to whom he shall pay such fee as may be prescribed) annually, within three months of the 31st December, an account of the property in his charge showing the sums received and disbursed on account of the estate during the year and the balance; such inventory, statement and account shall be in the prescribed form.

40. The duty of the manager of an estate of a person found to be suffering from mental disorder was recognized by the court in Steven Kariuki Kiriamburi & another v Jane Gaturi Kiriamburi & 4 others [2020] eKLR. In that case the court went further to state that:Once the order for appointment is granted, a trust relationship is created between the applicant and the subject and thus the subject’s estate that may be vested in him will only be held on behalf of and for the benefit of the subject. In any event, the trustees will not be able to dispose of the property without court’s authority as provided for under Section 27 of the act. In addition, Section 33(1) of the Act requires the manager or guardian provide an inventory and annual accounts of the subject’s estate.

41. In this case, it has been proved that the Subject is incapable of managing his affairs. The petition dated 3rd September 2021 succeeds on the following terms;i.A Declaration hereby issues that the subject, KAFO is a person suffering from Mental Disorder, within the meaning of Section 2 of the Mental Health Act Cap 248, the Laws of Kenya.ii.That AKAFO and ZKAF are appointed as Guardians and managers of the estate of the subject as provided under Sections 26, 27 and 28 of the Mental Health Act Cap 248 Laws of Kenya.iii.That AKAFO and ZKAF shall have joint physical and legal custody of the Subject at his primary residence at Adams Arcade and all the children of the Subject shall have unrestricted access to the Subject. Provided that AKAFO and ZKAF shall in consultation manage and make decisions regarding the care of the Subject and management of his affairsiv.That AKAFO and ZKAF are hereby appointed managers of the estate of KAFO under Section 28 of Mental Health Act to manage her estate including any such description of moveable or immoveable property, money, debts and legacies, power to execute, sign all deeds and instruments relating to or evidencing the title or right to any property or giving a right to receive any money or goods.v.That Pursuant to this appointment AKAFO and ZKAF shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging KAFOvi.In accordance with Section 27(4) of the Mental Health Act,2022 AKAFO and ZKAF shall cause within 30 days the publication of notice in the Gazette, informing the public of her appointment as the manager of the estate KAFOvii.The proceeds of rent and other revenue from the KAFO’S properties be deposited in an account opened and operated jointly by the AKAFO and ZKAF. The proceeds will be used among other expenses to cater for the KAFO’S needs and upkeep, especially medical care and specialized nursing care.viii.AKAFO and ZKAF shall file in this court bi-annual returns of the status of KAFO’S estate. The 1st report shall fall due on 30th June 2025. ix.Mention on 10th July 2025 to confirm compliancex.Each party shall bear their own costs.

SIGNED & DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF NOVEMBER, 2024. NYAUNDIJUDGEIn the presence of:Fardosa Court Assistant