[2016] KEHC 1578 (KLR)
The court found, based on uncontroverted medical evidence from a consultant psychiatrist, that the subject, J M K, suffers from a progressive degenerative neurological disorder resulting in significant cognitive decline. He is unable to understand the nature or extent of his property or recognize his beneficiaries,...
Source-derived case information.
- Citation
- [2016] KEHC 1578 (KLR)
- Parties
- Applicant: M W M; Respondent: J M K
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Petition 14 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Petition for Appointment of Guardian and Manager
- Outcome
- petition allowed
- Judges
- AG Ndung'u
- Legal Topics
- Mental Capacity, Guardianship, Estate Management, Property Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M W M
Applicant
J M K
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Petition for Appointment of Guardian and Manager
Legal Issues
- 1 Whether the subject, J M K, is incapable of managing his affairs due to mental incapacity.
- 2 Whether the petitioner should be appointed as guardian and manager of the subject's estate.
Ratio Decidendi
The court found, based on uncontroverted medical evidence from a consultant psychiatrist, that the subject, J M K, suffers from a progressive degenerative neurological disorder resulting in significant cognitive decline. He is unable to understand the nature or extent of his property or recognize his beneficiaries, and is incapable of making reasonable decisions regarding his affairs. The court held that, in such circumstances, it is both necessary and just to appoint a guardian and manager to protect the subject's interests and those of his immediate beneficiaries. The petitioner, being the spouse and supported by medical evidence, was found suitable for appointment. The court therefore...
Court Disposition
petition allowed
Orders
- The petitioner, M W M, is appointed as guardian and manager of the estate of J M K.
- The guardian is to strictly adhere to the powers to assemble, collect, safeguard and protect from any destruction, wastage, disposal, alienation or interference of whatsoever nature on all properties movable and immovable of J M K.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
PETITION NO.14 OF 2016
IN THE MATTER OF SECTIONS 26, 27 AND 28 OF MENTAL HEALTH ACT CAP 248 LAWS OF KENYA
AND
IN THE MATTER OF THE ESTATE OF J M K
AND
IN THE MATTER OF PETITION FOR APPOINTMENT OF A GUARDIAN AND MANAGER
BY:
M W M.........................................................PETITIONER
VERSUS
J M K.................................................................SUBJECT
RULING
The petition before me is dated 16th March, 2016. The order sought is that the petitioner be appointed as the guardian and manager of the estate of J M K (hereinafter the subject) with powers to assemble, collect, safeguard and protect from any destruction, wastage, disposal, alienation or interference of whatsoever nature all properties (movable and immovable) of J M K.
The petition is premised on the sworn affidavit of the petitioner.
The gist of the petition and the supporting affidavit is that the subject is married to the petitioner. They have six (6) children. The subject is the registered owner of:
a) GILGIL KARUNGA BLOCK 2/[particulars withheld] (CHOKERERIA) MEASURING 5. 327HA
b) GILGIL KARUNGA BLOCK 2/[particulars withheld] (CHOKERERIA) MEASURING 4. 503HA
c) GILGIL KARUNGA BLOCK 2/[particulars withheld] (CHOKERERIA) MEASURING 4. 156HA
d) NDUNDORI/LANET BLOCK 2/[particulars withheld] (TABUGA) MEASURING 1. 42HA
He also owns six (6) high grade dairy cattle and orchards full of oranges and he also runs a quarry on the land aforementioned.
The subject has been ailing for a long time and is currently suffering a degenerative neurological disorder of the mind to the extent that he cannot know the nature of his properties or even manage his own personal affairs. A psychiatrist report is exhibited.
It is thus urged that in the prevailing circumstances, it is only fair that a guardian and a manager be appointed for the subject.
I have had occasion to consider the petition and the supporting affidavit as well as the brief submissions by counsel in court.
Of vital importance in the determination of this petition is the medical report by Dr. Njau J.W., Consultant Psychiatrist, who examined the subject.
He opines in his conclusion after examination of the subject that the subject is an elderly man who suffers from a progressive degenarative neurological disorder which has caused significant decline from his previous level of functioning and currently he doesn't know the nature and extent of his property. He also doesn't know the identity of his natural beneficiaries. He therefore recommends the appointment of a guardian because the subject has no ability to make sound judgment, to weigh, reason or to make reasonable decisions.
In the totality of the material before me, I am persuaded that the order sought is necessary both for the benefit of the subject and for his immediate natural beneficiaries.
I consequently allow the petition in terms of prayer (a) thereof. The guardian appointed to strictly adhere to the powers to assemble, collect, safeguard and protect from any destruction, wastage, disposal, alienation or interference of whatsoever nature on all properties movable and immovable of the said J M K.
Dated, Signed and Delivered at Nakuru this 26th day of July, 2016.
A. K. NDUNG'U
JUDGE