[2022] KEHC 15134 (KLR)

In re Estate of JNP (Deceased) (Miscellaneous Application E001 of 2021) [2022] KEHC 15134 (KLR) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 15134 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Application E001 of 2021

SN Mutuku, J

July 18, 2022

Judgment

1. MPP, the subject, aged about 36 years, is a person living with a mental disability. Although she is able engage adequately in personal activities of daily living like bathing, dressing, feeding, grooming and toileting, she cannot undertake instrumental activities of daily living like shopping, transportation, cooking and managing finances. According to a report filed in court on March 1, 2022, MPP has downs syndrome.

2. It is for the above reasons that her cousin, AN has petitioned this court for an order of guardianship to enable her undertake vital decisions on behalf of the subject and take care of her. The petition is dated July 5, 2021.

3. From the information contained in that petition and the evidence adduced in court, MPP has no parents, both have passed on. She however has a sister, ASP

The petition 4. Court records show that the mother of the subject died intestate in 2016 and that her daughter and sister to the subject, petitioned for grant of letters of administration intestate in SPM Court Petition No 24 of 2017. A grant was issued to her on September 18, 2017. However, for the purpose of confirmation of grant of letters of administration in the above-mentioned petition, the subject, being a dependent of the deceased and in consideration of her mental condition, could not give her consent and requires a legal guardian for that purpose.

5. The petition was supported by an affidavit sworn by AN where she has averred that in SPM Petition No 24 of 2017 – Kajiado a grant of letters of administration over the estate of the deceased was issued more than 3 years and 8 months ago and the administrator is desirous of having it confirmed; that the subject’s consent is required for confirmation of grant, hence the reason why this petition for guardianship was filed to secure her interest in the estate.

Evidence 6. The matter was heard on November 29, 2021. AN testified as the first witness. She told the court that she is a cousin to the subject; that the subject is a special child who is mentally challenged; that she has known her since birth and that she understood the responsibility that comes with being a guardian.

7. The second witness was Dr AKN who gave his evidence through a video link. He is a consultant psychiatrist working at [Particulars withheld] for 4 years and that he has practiced for 21 years.

8. He told the court that he is familiar with MPP He said he had examined her on September 18, 2018. He found her kempt; was good with daily activities such as feeding, bathing and grooming herself but could not cook, do shopping or handle finances.

9. The doctor testified further that, on reviewing the subject, he found that she had no agitation and there was no evidence of psychosis including hallucinations nor delusions; that she was markedly disoriented to time and place; that she could not write a simple sentence or do simple arithmetic; that she had downs syndrome and could not make decisions about her life and needs assistance and that patients with such condition are not likely to recover.

10. The doctor confirmed that he was the author of the report dated September 18, 2018 which he produced as an exhibit.

Determination 11. After the conclusion of the case, counsel for the petitioner filed submissions dated April 20, 2022. He reiterated the facts as stated in the petition and supporting affidavit and cited authorities in support of the petition.

12. I have read the petition, the supporting affidavit, the submissions and have considered the evidence tendered in court. Section 2 of the Mental Health Act defines a person suffering from a mental disorder as follows:'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 or substance abuse.'

13. Section 26 of the Mental Health Act, Cap 248, provides as follows:26. Order for custody, management and guardianship(1)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 (emphasis mine).

14. The law under section 27(1) provides that:Power of manager in respect of estate(1)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.

15. From the evidence adduced in court I have no doubt that the subject is suffering from downs syndrome, a condition that according to the doctor, is unlikely to improve. She is, therefore not capable of handling complex decisions about her life and requires the assistance of a guardian appointed by this court. The petitioner has told court that the subject’s consent is required in the confirmation of grant of letters of administration in respect of her late mother’s estate, and that once appointed her guardian she will faithfully and dutifully act according to the law in all the areas that she is required to.

16. I have noted however, that this court was not given sufficient material to enable it make comprehensive orders in respect of the guardianship and management of the affairs of the subject. For instance, what is the subject’s share in respect of the estate of her late mother? how is she maintained? what resources are available for her upkeep, medication and other individual needs? does the subject have resources of her own? where does she live? etc.

17. This information is required for this court to make adequate provisions for her because appointment of a guardian to give consent for the confirmation of the grant is not the only thing required to be done. For this reason, this court requires additional information in view of the issues I am raising here, unless another court will be in a position to deal with that aspect in different proceedings.

18. As far as this petition is concerned, I am persuaded to decide in favour of the petitioner. I hereby appoint AN as Guardian of MPP pending further information regarding the issues pointed out in this matter.

19. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 18TH JULY 2022. SN MUTUKUJUDGE