[2023] KEHC 25674 (KLR)

In re EWM (A Person Suffering from Mental Health) (Petition E190 of 2023) [2023] KEHC 25674 (KLR) (Family) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25674 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Petition E190 of 2023

PM Nyaundi, J

November 10, 2023

Judgment

1. Before this court is a Petition dated September 30, 2023 by which the Petitioners LWM, AWM, JNM seeks the following orders:-I. That the subject EWM be adjudged to be person suffering from mental incapacity.II. That LWM, AWM And JNM appointed Guardians and Managers of the estate of the subject EWMIII. That LWM, AWM and JNM shall jointly act as managers and guardians in respect of the affairs of EWM and in particular do the following:i.Manage the subjects health care;ii.Have access and operate the Subject’s Bank Accounts;iii.Execute documents on behalf of Subject.IV.That the petitioners be and are hereby authorized with special permission pursuant to section 27(1)(a) of the Act to enter into, access ,subdivide, sell, transfer and/or otherwise dispose of and to execute any and all instruments and documentation in the name of and on behalf of the Subject to effect such sale, subdivision , transfer and/or disposal in relation to the properties and assets registered in the name of EWM.V.That the cost of this petition be provided for. 2. The Petition was supported by an Affidavit dated 30th September 2023 sworn by the Petitioners. The matter was canvassed by way of viva voce evidence on the online platform. The Petitioners who testified and told the Court that they were is the children of the Subject Patient. The patient is 85 years old.

3. The Petitioners stated that they were seeking to be appointed as Guardians of their mother’s affairs and manager of her estate. They told the court that during the year 2020, the subject’s mental and physical condition was noted to have drastically deteriorated on account of her suffering from dementia. Upon medical examination, it was determined that the subject’s cognitive functions, particularly in the domain of memory, language and exercise of executive function were impaired to the extent that she had become bedridden. The subject consequently required specialized care and assistance and care to perform routine/normal day to day functions.

4. The subject is the spouse to the Late CMN alias CNM, who died 13th December 2006. She is currently under the care of the 1st petitioner.

5. The subject is not able to manage her own affairs and perform activities of daily living such as bathing, grooming, toileting and even feeding herself. She is not in position to take care of herself. She is struggling more and more to communicate. She forgets things all the time and needs constant reminders.

6. That the subject suffers from a Dementia, she has shown a deteriorated condition to extent that her cognitive, functions, executive functions and motor activity were severely impaired. The patient was consequently bedridden and rendered incapable of managing her own affairs and those of the Estate of her late spouse. They have annexed to her Supporting Affidavit, a copy of the medical report of the patient dated 22nd December 2022 by Dr. Linet Kendi and another medical report dated 18th December 2020 by Dr. Gilbert k. Ngetich. Annexures (LWG-3).

7. The Order of guardianship will enable the Petitioners handle the Subject’s affairs including payment of patient’s continued medical and home nursing care, maintenance and daily upkeep and manage her estate.

8. Jason Njai Mwenje, Timothy Maina Mwenje, Suzzanne Muringo Njenga, James Nyaga Mwenjeand Gladys Wanjiku Mwenje other children of the subject and has confirmed that they had no objection to the Petitioners being granted guardianship of their mother. They have signed consents dated October 18, 2023.

9. I have carefully considered this Petition, the Affidavit filed in Court as well as the evidence adduced in the matter. Section 26 of the Mental Health Act, cap 248, Laws of Kenya provides for the circumstances under which a Court may make orders for the Guardianship of a Subject (Patient) and the management of their affairs 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)Whereupon 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 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]

10. The Petitioners has sought to be declared as Guardians and Managers of the Patient. To merit the above orders the Petitioners must adduce evidence sufficient to satisfy the Court firstly that the Patient is a person suffering from a mental disorder under the Mental Health Act and secondly that the Patient is incapable of managing his own affairs. The Petitioners testified that the Patient was diagnosed with Dementia. They testified that the patient ‘s cognitive functions, particularly in the domain of memory, language and exercise of executive function were impaired to the extent that she had become bedridden. She requires specialized care and assistance to perform routine/normal day to day functions.

11. Medical Report dated 18th December 2020 prepared by Dr. Gilbert K. Ngetich and medical report by Dr. Linet Kendi dated 22nd December 2022 were produced as an exhibit. The Doctors diagnosed the subject with Alzheimer’s Dementia. The report stated inter alia that:-“The above mentioned (EWM) was reviewed after she presented with history of memory loss and forgetfulness which has deteriorated in the last 6 years. It was also reported that she is bedridden and was having difficulties with recognizing people. She is unable to take care of herself hence is completely dependent on others and basically requires specialized care. Additionally she has been diagnosed with diabetes and is on treatment.A diagnosis of Alzheimer’s Dementia was made which is a mental disorder characterized by a loss of thinking ability, memory, attention, logical reasoning and problems with doing daily task.Opinion: Esther requires assistance with most activities of daily living especially managing her finances and property since people living with dementia may be victims of financial abuse or fraud by dishonest people. I therefore recommend that a next of kin be appointed to help manage her financial affairs and assist with complex decision making.

12. The Subject’s children are in agreement with this Petition for Guardianship and have signed consent to the Petition and confirmed their consent to the Court. The Petitioners has always cared for her.

13. Based on the material availed to this Court I am satisfied that the Subject suffers from a mental illness under the terms of the Mental Health Act, 2022. I am satisfied with the merit of this Petition and order as follows;i. EWM (the Subject) is hereby adjudged to be suffering from mental disorder pursuant to Section 26 of the Mental Health Act, cap 248 Laws of Kenya.ii. LWM, AMM AND JNM are hereby appointed as the legal guardians to EWM.iii. LWM, AMM and JNM are hereby appointed manager of the estate of EWM 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.iv. Pursuant to this appointment the Petitioners shall deliver to court and the public Trustee, within 6 months, an inventory of the property belonging EWM.v. In accordance with section 27(4) of the Mental Health Act,2022 the Petitioners shall cause within 30 days the publication of notice in the Gazette, informing the public of her appointment as the manager of the estate of EWM.vi. As Managers of the Estate of EWM the Petitioners may dispose of the property only with the sanction of the court.vii. The matter will be mentioned before the court on18th Jnauary 2024 to confirm compliance.

viii. Costs to be met out of the Estate of the Subject.

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 10th DAY OF NOVEMBER, 2023. P NYAUNDIJUDGEIn the Presence of;Mr. Omondi h/b for Mr. Mwagawe for the PetitionersSylvia Court Assistant