[2017] KEHC 904 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CIVIL CASE NO. 42 of 2016

IN THE MATTER OF ADMINISTRATION OF THE ESTATE OF PERSON OF UNSOUND MIND ACT

AND IN THE MATTER OF THE MENTAL HEALTH ACT CAP 258 OF THE LAWS OF KENYA

RULING

1. The application for consideration is the Notice of Motion dated 21st April 2016. The application is brought under Article 57 of the Constitution 2010, Section 26 of the Mental Health Act, Sections 1A, 1B and 3A of the Civil Procedure Act of the Laws of Kenya, Order 2 Rule 15 sub rule 1 (a) and (c) and sub rule 3 of the Civil Procedure Rules, 2010. The applicant seeks orders that the honorable court be pleased to strike out the petition dated 16th March 2016.

2. The application is based on the following grounds that; there is no legal basis laid to warrant the orders sought as the applicant is not undergoing any treatment for any mental illness or disorder and her doctor has not raised any such concern. That the case had been filed in bad faith and actuated by malice as the relationship between the parties has deteriorated over the years. The applicant is apprehensive that the petitioners do not have her best interest at heart but rather seek to cause her further pain, distress and in the process abusing the court process. That the petitioners are permanent residence of United Kingdom while she is a permanent resident in Kenya and hence not able to act in the best interest of the applicant as sought. That the step-daughters are not her blood relatives and she has her blood relatives with whom she has organized her affairs in the event she is unable to take care of herself as she has no trust and confidence in the petitioners to faithfully take care of her affairs. That they are also not qualified to make any determination on the applicant’s mental capacity and it is in the interest of justice that the orders sought herein are granted.

3. In her affidavit in support of the said application dated the 21st of April 2016 C H avers she was born on 15th October 1936 and is 79 years old she is capable, active and healthy. She takes good care of herself and has regular check-ups by medical professionals. She is not currently undergoing any treatment for mental illness or disorder. At no time has the doctors raised any concerns regarding her mental or physical health and indicated that he requires constant monitoring care. That the 1st petitioner is a nurse who has not practiced for quite along tome while the 2nd petitioner is a veterinary officer and hence they are not qualified to make a determination on her competence or mental health. That she has been married to her husband Mr. H since 1971 with who she resides with in their home in Muthaiga who has been diagnosed with advance dementia. That she has taken care of the petitioners since they were 6 and 11 years respectively. The two were staying with their mother apart from the holidays when they would occasionally visit them. That their relationship began to strain in 2010 when her husband was brought back from the UK without her knowledge while she was convalescing from an operation and the strain continued on when they sought guardianship of their father in Misc. No. 142 of 2014 in the family Division of the High Court of Kenya and the same is still pending for ruling before Justice Musyoka. That she is apprehensive that the petitioners are not genuine in claiming they want to care for her or her affairs and that the same is filed in bad faith to achieve a motive beyond that expressed in the petition.

4. The 2nd respondent/ petitioner in her replying affidavit dated the 20th May 2016 avers that C H is not mentally competent as she suffers from a mental disorder and the petition was filed after many years of watching her deteriorate. In terms of her mental fitness and competence hence she is not fit to swear an affidavit under the Oaths and Statutory Declarations Act (Cap 15). That the petition should not be determined at an interlocutory stage by the same patient who is subject to the petition. That the medical report by Dr. Nadeem Sheikh and Dr. M. Warshow a consultant cardiologist shows that no examination has been done on her mental health further that neither of the doctors are mental health experts to give any opinion on the applicant’s mental health. That there is an attempt by the applicant to hood wink this court into believing that the doctors have attested to the positive mental health of the patient. That they always take the best measures to advance her best interests and undertake to meet all the expenses if any. That the applicant suffers from sciatica which is a condition of pain affecting the back, hip and outer side of the leg caused by compression of a spinal nerve root in the lower back often owing to degeneration of an invertebrate disk. Though it is possible for someone to recover from sciatica but continue to have severe mental challenges. That from observation of the drastic decline of the applicant’s mental health is what has led the petitioner to make the said application. That the applicant has extreme memory loss, sudden and drastic mood swings and fits of anger followed by breakdown into tears irrational behavior paranoia and inability to comprehend one’s situation. She refutes allegations that they brought back their father from the UK without her knowledge is a clear indication of her dementia as she had given express written consent.

5. C H was examined by the court and testified that she came to Kenya from England in 1968 and later on met her husband in 1969 and they later married in 1970 and has been married to her husband for over 46 years. That her husband had a previous relationship and had 2 daughters. She stated that she is 80 years and that her husband is suffering from dementia and she has hired 2 nurses to take care of him. She avers that she wakes up at 6. 00 a.m. goes for walks or golf and is back by lunch and plays bridge twice a week. That her husband wants her to read and sit with him. That she was surprised when J asked if she was ok with them being her guardian since she is capable of handling her affairs, her mail and looking after herself. She testified that the move is motivated by finances. That she has her means and businesses in England. That her husband is a Kenyan citizen while she is a Kenyan resident and a Citizen in the UK where she was born as an only child and where her other family relatives are. That she has a good relationship with J daughter who works in Kenya. That she has been assessed by 3 doctors who have found her medically fit.

6. Mr. Gichuhi submitted that there is no candid disclosure of the cordial relationship the applicant had with the petitioners had until a few years ago and that she had brought them since they were 6 and 11 years old. Adding that there is no assessment of a medical reputation or even a candid conversation with any of the medical doctors of whom the applicant has informed the court. That it is erroneous and it brings out the abuse of the applicant by referring to her as a patient. That it connotes that the applicant is under the same form of mental or psychological supervision. That she is a person with her mental faculties competently intact. That it is in the abuse of the court to invoke the mental health without any mental diagnosis having been made. There is no finding of any sort disclosed in the petition and she has not been diagnosed with any mental illness and does not suffer any mental illness. That Section 26, 27, and 28 of the Mental Health Act deals with management and custody of a person suffering from mental disorder. None of the provisions would apply. That the applicant’s mental capacity is beyond question and that age has no relationship with mental disease. That the last part shows abuse under Article 57 of the Constitution which deals with other members of society. That the applicant has explained she plays golf and does other activities and drives her personal development. That the court should safeguard and promote her self-development. Adding that it is exceedingly frustrating for the for the petitioner to come to court without any grounds and mistreat their step mother that the same degrades her dignity and respect and it is an abuse of the court. He urged the court to protect the applicant’s dignity and respect by dismissing the petition.

7. Mr. Mwamuye for the respondent submitted that the application is based on Order 2 rule 15 (1) & (2) and the same is limited to the points of the law. That the affidavit by C is extensive and has gone into matters of fact that are the petitioners have disputed. He argued that what the court is being called to do is to conduct a trial as there are issues arising from as way back as 2015 from the step daughters which express the diminished state of the respondent. That the matters arising can only be conversed through a full trial. That in case the court holds that there is no need to a medical report the court can order for the same. He submitted that the 2nd petitioner has outlined the concerns of the stepmother. During the court’s informal conversation with the applicant it was clear that for purposes of Kenyan law the closest relative to the applicant is her husband and her step-daughters. That instead of filing a replying affidavit the respondent filed an application. It was submitted further that the application was filed to delay the hearing of the main petition. That under Article 57 of the Constitution it places the obligation on the court to act in the best interest of Caroline. Adding that Mrs. H should be allowed by the court to live her life to the fullest which is what the petition is seeking to do. That there are things the applicant said that are not true and that it was unfortunate that the respondents are not in court.

8. Mr. Gichuhi in response argued that it is not in the best interest of the applicant to be dragged through a trial. That the applicant cannot be held captive to the petitioners until the petition is heard adding that the court does not have to wait for a trial where there is gross abuse of the court process. That it is too late for the respondent to argue that the court can order them to present a medical report as there is no attempt by the petitioners to have the same carried out. He relied on the case of In the matter of Gerishon Kirimi (2009) where it was held that a court must rely on the medical report for it to enter into the arena to determine the issue of mental health. He urged the court to remove the applicant from the bondage of the petition.

9. Parties filed written submissions. The applicant reiterated what is deposed in her affidavit adding the following; the courts have laid out the legal principles on striking out pleadings. Reliance was made on 2 case DT Dobie & Co (K) Ltd and Joseph Muchina (Court of Appeal Civil Appeal N. 37 of 1978) Madan Jobserved that, “it is relevant to consider all averments and prayers when assessing whether a pleading discloses a reasonable cause of action. The court ought to act very cautionary and carefully and consider all the facts of the case without embarking upon a trial therefore before dismissing a case for not disclosing a reasonable cause of action … No suit ought to besummarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendments.”In Mombasa Civil Appeal 109 of 2004, Abubakar Zain Ahmed vs. Primier Savings and Finance Limited werethe Court of appeal held that, “the second principle that a stay or even dismissal of proceedings may often be required by the very essence of justice to be done, so as to prevent the parties being harassed and put to expense by frivolous vexatious or hopeless litigation.”

10. It was submitted that the petition filed discloses no cause of action against the applicant and no amendment can cure it. That no legal basis has been laid for the orders sought as the applicant is not undergoing any treatment for any mental illness or disorder and her doctor has not raised any concern in that regard. That the petition was done is bad faith and is actuated by malice. That as a matter of law a declaration cannot lie as a court has no jurisdiction to declare that the petitioner has a right to have the respondent declared a patient and a person suffering from mental disorder. That the petitioners do not have her best interest at heart having filed the said petition whilst Misc. Civil No. 142 of 2014 is still pending in the Family division which she alleges is an abuse of the court process. The petitioners are permanent residents of United Kingdom furthermore the applicant has made her own arrangements as regards her affairs. That the provisions for mental health is being used as a shield to protect persons suffering from mental disorders. That from a medical report from her doctor has not shown any concern regarding her mental health and the vet and nurse are not competent to contradict this position. That her relationship with her step-daughters is strained and broken. The applicant relied on the following cases, In the matter of the Mental Health Act Cap 248: In the matter of Gerison Kirima [2009] eKLR where the Court considered the definition of a person suffering from a mental disorder and concluded that: “the petitioner while bringing in a petition for orders under Section 26 of the Act has to show the court by providing medical reports to substantiate the averment made in the petition. The petitioner, when he comes before the Court, has to show prima facie that the person against whom the orders are sought is a person suffering from mental disorder so as to be incapable of coping the ordinary demands of life and the orders sought is for the welfare of the person concerned.

This satisfaction by the court has to be based on the medical reports annexed to the petition. I humbly agree that the court as per the provisions of the Act has no jurisdiction to enter into the arena of dispute so as to assist either party to substantiate their respective claims”.The case of Re. S. (F. G.) (Mental patient) [1973] 1WLR where the court held that the orders sought can only be granted after a judge considering the medical evidence in support thereof. That no medical evidence was furnished by the petitioner’s with their petition and therefore no reasonable cause has been laid to warrant a plenary hearing regarding the mental status of the applicant and to violate her constitutional rights and the case of Grace Wanjiru Munyinyi & Another vs Gideon Githunguri & 5 Others [2011] eKLR,where the court held that,“there is always a presumption that every person is of sound mind until the contrary is proved and the onus of proof is on the person who alleges the contrary……it is a very serious thing to say of and concerning a person, that such a person of unsound mind or suffers mental disorder. The law presumes that very person is mentally sound, unless and until he is proved mentally disordered.”

It was submitted that the relationship between the applicant and respondents has broken down and that the respondents had installed surveillance equipment in her house in 2012 without her knowledge and the 2nd petitioner threatened the applicant that she would be declared mentally unstable. That the court should not allow its processes to be used to settle personal difference. That this court should avoid any further abuse. Reliance was also made on the findings in the case of ReVML [2015] eKLRwhere it was held, “the inherent jurisdiction of the court enables it to exercise (i) control over process by regulating its proceedings, by preventing the abuse process and by compelling the observance of the process. In sum it maybe said that the inherent jurisdiction of the court is a virile and viable doctrine and has been defined being reserve or fund of powers, a residual source of powers which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure observance of the due process of the law to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” The same position is reiterated in the case ofMNN v MNN [2016] eKLR.

Lastly the applicant relied on the case ofMuchanga Investments Limited v Safaris Unlimited (Africa) Limited and 2 others,where the court dealt in great length on what amounts to abuse of the process. It held “the person who abuses process is interested only in accompanying some improper purpose that is collateral to the proper object of the process, and offends justice.”

11. The petitioners in their submissions raised 3 issues for determination.

i. Whether the petition discloses no cause of action or no reasonable cause of action to warrant the orders sought therein.

ii. Whether the petition is frivolous, vexatious and an abuse of the court process;

iii. Whether the patient /Applicant Notice of Motion dated 21st April 2016 is merited and meets the applicable legal criteria as set out under Order 2 Rule 15 of the Civil Procedure Rules 2015.

12. The petitioner submitted that the petition discloses a reasonable cause of action to warrant the orders sought therein; that the same is arguable and not frivolous and vexatious as alleged. Adding that the applicant’s application dated 21st April 2016 is mischievous and unmerited and as such the petitioners should be awarded costs. In regards to their argument that the petition discloses a reasonable cause of action they distinguished the case of Re. S (F.G. (Mental Health Act) [1973] 1 W.L.Rwhere the petition was dismissed as disclosing no cause of action due to the fact that like the petition herein no medical report annexed. It was submitted that the said position is what is held in the English Act Section 101 which expressly requires a judge to consider medical evidence in reaching a finding that a person is a patient within the meaning of the Act. That the petition discloses a cause of action even without a medical report attached as the same is not a mandatory requirement under Kenyan law in the Mental Health Act unlike in the English law. The petitioners referred to the definition of a person suffering from mental disorder as, “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 psychopathic person with mental illness and person with mental illness and person suffering from mental impairment due to alcohol of substance abuse”.That under Section 26 (3) of the said Act a person who suffers mental order is subject to inquiry. That under Section 36 of the said Act the question whether a person suffering from mental disorder is a question to be determined through judicial inquiry and is an allegation. That this court therefore needs to make a judicial inquiry and to satisfy itself as to whether the allegation has been proved with or without a requirement that it must have a medical report. It was further submitted that the case of Gerishon Kirima (supra) is not binding to this court as it was issued by the High court sitting as a single judge and that the dicta applied in the said case runs contrary to the approach adopted by the High court in the case of Simon Peter Karanja Kiarie (supra) where the court held that the question of the existence or absence of a medical report for purpose of judicial proceedings under the Mental Health Act is an evidentiary question which should be brought up during the hearing. That the petition discloses a cause of action even without the medical report which is not mandatory in Kenyan law. That the court can order that a medical be presented and that the petition raises serious triable issues which should be determined on their merits rather than being summarily dismissed unheard at the interlocutory stage. That the applicant’s supporting affidavit of 20th May 2016 at paragraph 19 the applicant contradicts herself having given consent to have her husband back to Kenya. That the affidavit of J H dated the 20th May 2016 if full of evidence that illustrates disturbing examples of the applicant’s dementia and paranoia and that this court is duty bound under Article 57 of the Constitution to take measures to ensure that the patient receives reasonable care and assistance from the family and the state.

13. It was further submitted that the applicant is limited by Order 2 Rule 15(2) as she has not adduced any applicable law that would warrant the dismissal of the petition. The respondent relied on the case of D.T. Dobie & Company (K) Limited v Joseph Mbaria Muchina & Leah Wanjiku Mbugua C.A. No. 37 of 1978 where the court of appeal was clear that Order 2, rule 15(1)(a) is discretionary and a jurisdiction is to be exercised with extreme caution. That should the petition be found not to have reasonable cause of action they out to be given an opportunity to amend. Madan J in the said case stated that,

“if an action is explainable as a likely happening whichis not plainly and obviously impossible, the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining the suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it…… that if a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”.

14. It was further submitted that the petition presents a strong and arguable case that has been brought uberrimae fideiand is not frivolous, vexatious and or an abuse of the court process. That there a weighty triable issues which should not be summarily dismissed. Reliance was also made in the case of Intercounties Importers & Exporters Ltd vs. Nairobi City Council Civil Case no. 1070 of 2001 where Justice Ringera held that, “Havingshown triable issues, the defendant is entitled to have its day in court and the plaintiff’s claim for the entry of summary judgment must be and is hereby rejected”.That the petitioners have shown that there are triable issues which need to be canvassed at the full hearing. That there is not an iota of scandal, vexation, frivolity or abuse of the court process. That the application by the applicant is mischievous, unmerited and does not meet the applicable legal criteria as set out under Order 2 Rule 15 of the CPR 2010. That if need be they should be allowed to amend the petition and that only a hopeless petition would be summarily dismissed.

15. The applicant filed a reply to the respondent’s submissions. It was submitted that the petitioner’s interpretation of Section 36 of the Mental Health Act is misleading, that the said section provides that evidence has to be produced in the form of an affidavit before the court to affirm the soundness of mind of a person who had previously been found to be suffering from a mental disorder. The applicant on her part has indicated that she is not suffering from and has never suffered from mental disorder. The applicant sought to distinguish the case cited by the applicant In the matter of Simon Peter Kiarie (Supra) stating that the petitioners are misleading as the court ordered the petitioners to file further affidavits and attach medical reports to show their mental status as they both seem to accused one another of mental instability and thereafter the court held that it had no medical assessment of the subject’s father, despite asking for it and declare father medically fit or otherwise for lack of evidence.”

16. On the doctrine of horizontal stare decisis the applicant relied on the case of In the matter of the Estate of George M’Mboroki (deceased) [2008] eKLRwhere the court held that, “it is well known that the doctrine of horizontal stare decisis the decision of High Court judges are not binding on other High Court judges. They are merely persuasive. But the importance of this doctrine is to promote uniformity, certainty and consistency. So that cases presenting similar issues and circumstances should be decided by the application of similar principles of law.” That the applicant reiterated that the basis on which the petition was filed was not genuine and prays that the court dismisses the application.

DETERMINATION

17. I have carefully considered the affidavits together with the annexures and the detailed submissions by the parties. The applicant seeks the dismissal of a petition by the respondents seeking to declare her mentally incapable to take care of her affairs. In support of her being mentally fit she has adduced two medical reports by Dr. Nadeem Sheikh and Dr. M. Warshow which goes to show that the applicant is mentally fit. The applicant submitted that the respondents have not filed any medical report to rebut what is stated in regards to her mental fitness that the petition remains as a mere allegation with no evidence to back it and she seeks a dismissal of the said petition. The respondent opposed the said medical reports claiming that the said doctors are not versed with mental health as such they cannot give an opinion on the applicant’s mental health. Further, that no mental examination has been carried out on the applicant to rule out whether or not she is mentally ill. The respondents also argued that the matter should not be summarily dismissed and that the petition should be allowed to proceed and evidence adduced on the mental status of the applicant.

18. Order 2 Rule 15 (1) of the Civil Procedure Rules 2010 provides that: “(1) at any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

a) It discloses no reasonable cause of action or defence in law; or

b) It is scandalous, frivolous or vexatious; or

c) It may prejudice, embarrass or delay the fair trial of the action; or

d) It is otherwise an abuse of the process of the court;

And may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

19. The above provision gives the court power to strike out pleadings. The Court of Appeal has held that courts have to be cautious and careful when asked to strike out pleadings and that it can only be invoked only in plain and obvious cases and that the jurisdiction must be exercised with extreme caution. (See DT Dobie (supra). In the case of Abubakar Zain Ahmed vs. Premier Savings and Finance Limited and 3 others Civil Appeal 109 of 2004 the Court of appeal held that , “ It is trite law that the power to strike out any pleadings or any part of a pleading under Order 6 rule 13 is not mandatory , but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all circumstances relating to the offending pleadings( emphasis mine)…..……The second principle is that a stay or even dismissal of proceedings may “ often be required by the very essence of justice to be done, so as to prevent the parties being harassed and put to expense by frivolous, vexatious or hopeless litigation.”(Emphasis mine). In Dev Surinder Kumar Bij v Agility Logistics Limited CIVIL SUIT NO. 311 OF 2013[2014] eKLR it was held, inter alia, that: “For a pleading to be dismissed pursuant to the provisions of Order 2 rule 15(1), it should be made clear and obvious that the issues raised by the Plaintiff can neither be substantiated, nor disclose any reasonable or justifiable an action as against the Defendant.”Further in the case of In Yaya Towers Limited vs. Trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000 the Court of Appeal expressed itself thus: “A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial {emphasis mine}...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved... If the defendant assumes the heavy burden of demonstrating the claim is bound to fail, he will not be allowed to conduct a mini trial upon affidavits... It is not the length of arguments in the case but the inherent difficulty of the issues, which they have to address that, is decisive... The issue has nothing to do with the complexity or difficulty of the case or that it requires a minute or protracted examination of the documents and facts of the case but whether the action is one which cannot succeed or is in some ways an abuse of the process of the Court or is unarguable...Where the plaintiff brings an action where the cause of action is based on a request made by the defendant he must allege and prove inter alia, both the act done and the request made for doing such an act. In the absence of any request shown to have been made by the defendant in the particulars delivered of such allegation, it would not be possible for the plaintiff to prove any request made by the defendant and without this the essential ingredient of the cause of action cannot be proved and the plaintiff is bound to fail...No suit should be summarily dismissed unless it appears so hopeless that it is plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.”

20. The law governing the petition as filed is provided by the Mental Health Act Cap. 286. Section 2 of the Mental Health Act defines a “person suffering from mental disorder” means a person who has been found to be so suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol of substance abuse. Substance abuse is defined in the Act in very clear terms. I have read the petition filed in court on the 30th of March 2016. The petitioners the step daughters of the respondents/applicants are seeking to have the court declare that C H the patient / respondent is a patient and is suffering from a mental disorder with the meaning of Section 2 of the Mental Health Act Cap. 286 of the Laws of Kenya and that they be appointed as guardians and estate managers over C H and her estate. The petitioners give facts of the patient’s health at paragraphs 5 to 9 of the petition. The petitioners have not attached any medical report on the patient. The Mental Health Act Cap 286 is an Act which deals with persons suffering from mental disorder. The Act clearly defines a person suffering from mental disorder. The applicant states that she is not suffering from any mental illness. In the case of Simon Peter Karanja Kiarie (supra)Justice Aluoch referred to two medical reports which both seemed to accuse one another of mental stability. The court had medical reports unlike this case which reports discussed the patient’s mental status. The Judge however noted that there was no medical assessment on the subjects’ father and therefore could not declare him medically fit or otherwise for lack of evidence. Justice Rawal in the case of Inthe Matter of Gerishon Kamau Kirima (supra),held that the petitioner while bringing in a petition for orders under Section 26 of the Act has to show the court by providing medical reports to substantiate the averments in the petition. That the petitioner when he comes to court has to show prima facie that the person against whom the orders are sought is a person suffering from mental disorder so as to be in capable of coping with the ordinary demands of life and the orders sought is for the welfare of the person concerned. That the satisfaction of the court has to be based on medical reports annexed to the petition.

21. I hold the same view as Justice Rawal that for a petitioner to file a petition under the mental Health Act it is necessary that from the onset a medical report on the mental status of the alleged patient has to be attached. In this matter no medical report has been attached. One would then ask what is the petitioners’ foundation in filing the petition. The petitioners in the petition have not sought to have her medically examined. They have averred that the applicant is a patient within the meaning of Section 2 of the Mental Health Act. Cap 286. For a party to come under section 2 there has to be a report on the mental status of the patient or some concrete evidence of her behaviour which would suggest that the person is mentally ill. The applicant before this court and was briefly examined she showed no signs of being mentally ill further the medical reports by the two doctors Dr. Nadeem Sheikh and Dr. M. Warsow do not make any finding that she is mentally ill. I find that there is no reasonable cause for the respondents/petitioners to proceed with petition with an aim to declare the applicant mentally ill and incapable of taking care of her affairs. Further, the applicant has indicated that she has made arrangements with her relatives though in the UK to take care of her and her affairs should she be incapable of doing so herself. Compelling the applicant to stand trial to prove her sanity in my view is quite oppressive as such I find it is only fair to relieve her from the said petition as proceeding with the said petition will cause the applicant embarrassment. I find the said petition lacks a cause of action as the person they seek to hold and find mentally ill has adduced evidence of her mental capacity contrary to the said allegations. The petition lacks a foundation without the medical report neither can it be cured by an amendment. From the foregoing, I find that the applicant’s application is merited and the same is allowed. I therefore dismiss the petition dated 14th March 2016 with costs. It is so ordered.

Dated, Signed and delivered this 5th day of December 2017.

R. E. OUGO

JUDGE

In the presence of;

Mr. Oyoo h/b for Miss Watende For the Applicant

Mr. Mwamuye For the Respondent

MS. Charity Court Clerk