[2021] KEHC 13278 (KLR)
The court found, based on uncontroverted medical evidence and affidavits, that JA is incapable of managing his own affairs due to cognitive decline, parkinsonism, and neurovisual impairment. The petitioners, being the wife and children of the ward, are suitable persons under the Mental Health Act to be appointed as...
Source-derived case information.
- Citation
- [2021] KEHC 13278 (KLR)
- Parties
- Applicant: ANA; Applicant: JMA; Applicant: SMA; Respondent: JA
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Petition E00 8 of 2021
- Procedural Posture
- Guardianship Petition / Judgment
- Outcome
- Petition allowed. Petitioners appointed as guardians and managers of the ward's person and estate.
- Judges
- REA Ougo
- Legal Topics
- Mental Capacity, Guardianship Orders, Management of Estate, Maintenance of Dependents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ANA
Applicant
JMA
Applicant
SMA
Applicant
JA
Respondent
Procedural Posture
Guardianship Petition / Judgment
Legal Issues
- 1 Whether the ward JA lacks mental capacity to manage his estate and pension due to medical conditions.
- 2 Whether the petitioners qualify for appointment as guardians and managers of the ward's estate under the Mental Health Act.
- 3 What orders should be made regarding the management of the ward's estate and maintenance of his dependents.
Ratio Decidendi
The court found, based on uncontroverted medical evidence and affidavits, that JA is incapable of managing his own affairs due to cognitive decline, parkinsonism, and neurovisual impairment. The petitioners, being the wife and children of the ward, are suitable persons under the Mental Health Act to be appointed as guardians and managers. The court exercised its powers under sections 26 and 27 of the Mental Health Act to appoint the petitioners as joint guardians and managers of JA's person and estate, with specific authority to operate his bank account for the purposes of medical care and maintenance of dependents, subject to monetary limits and reporting requirements. The orders are...
Court Disposition
Petition allowed. Petitioners appointed as guardians and managers of the ward's person and estate.
Orders
- ANA, JMA, and SMA appointed as guardians of JA under the Mental Health Act with powers to make personal decisions for and on his behalf.
- Petitioners appointed as joint managers of JA's estate with authority to operate and withdraw funds from Absa Bank Kenya, PLC A/C No.[xxxxxxxx] Kisii Branch for medical bills and maintenance of dependents, limited to KES 60,000 per month and KES 100,000 for insurance cover upon acquisition.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
FAMILY DIVISION
PETITION NO. E00 8 OF 2021
IN THE MATTER OF: MENTAL HEALTH ACT (CHAPTER 248 OF
THE LAWS OF KENYA
AND
IN THE MATTER OF: PETITION FOR GUARDIANSHIP UNDER
SECTION 26 OF MENTAL HEALTH ACT
AND
IN THE MATTER OF: THE CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF: J A (THE SUBJECT)
AND
ANA......................................................................1ST PETITIONER
JMA.....................................................................2ND PETITIONER
SMA....................................................................3RD PETITIONER
JUDGMENT
1. By a Petition dated the 12/5/2021 the petitioners ANA, JMA and SMA seek orders of custody and guardianship of the pension of JA (the ward’) and management of his estate pursuant to section 26 of the Mental Health Act (2012).
2. According to 1st the petitioner the Ward is her husband. That in October 2020 the ward was diagnosed with urolithiasis and admitted for treatment and upon surgery he developed neurovisual impairment. That the ward has also been diagnosed with parkinsonism with progressive blindness having developed cogwheel movement in the course of his follow-up which conditions have exacerbated his mental condition and he is unable to carry out ordinary mental activities to make reasonable decision for himself and others. That as a result of his mental impairment the Ward lack capacity to manage his estate and pension.
3. At the hearing of the petition the petitioners together with the children of the Ward TNA, EBA and CGA were present in court. The Ward too was in court. The children of the Ward who are not petitioners had no objection to the orders sought.
4. A medical report dated 5/5/2021 written by Dr. Matiko attached to the petition states that that during the recuperation phase the ward was noted to have cognitive decline with associated color vision impairment and features of parkinsonism. That from the current assessment he is not able to execute some functions that require both short and long term memory as well as tine hand movements.
5. It is evident that the ward is incapable of making his own decisions as he requires physical and mental activities to that extent that he is not capable of performing the same.
6. Section 26 of the Mental Health Act (2012) empowers this court to make an order for custody, management and guardianship. It provides that the court may make orders for the management of the estate of any person suffering from mental disorder and for guardianship of a person suffering from mental disorder by any near relative or by any other suitable person.
7. Section 26 (3) provides that the court may make such order 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 maintains of the family as are dependent upon him for maintenance.
8. In a further affidavit in support of the petition the 1st petitioner has indicated that they have a monthly expenses of 27,000/= for the Ward’s treatment and Kshs. 24,500/= for maintenance of 3 children namely TA, EA and CA and that they will need to take a personal medical care for the ward which will cost an average of Kshs. 100,000/=
9. The petitioners have demonstrated sufficiently that the Ward lacks capacity to manage his estate and pension and that there is necessary for an order of custody, guardianship and management to be made to the petitioners. Being the wife, son and daughter of the Ward they qualify as persons under the Act who can be granted custody, guardianship and management of the Ward.
10. I therefore appoint the 3 Petitioners; ANA, JMA and SMA as guardians of the person JA in accordance with the Mental Health Act with powers to make personal decisions for and on his behalf.
11. The petitioners as joint managers of the estate of JA are appointed pursuant to section 27 (i) (a) of the Mental Health Act to operate and withdraw funds held in the account with Absa Bank Kenya, PLC A/C No.[xxxxxxxx] KISII Branch for the purposes of catering for the ward’s medical bills and maintenance of his dependents. The amount to be limited to Kshs. 60,000/= per month and Kshs. 100,000/= for insurance cover upon its acquisition.
12. The 3 petitioners are also authorized to manage the bank account held by the Ward JA by collecting maintaining and doing all that appertains to the preservation of the same.
13. The petitioner shall file a statement on the use of the monies in the court every 6 months from the date of this judgment until further notice. No order as to costs.
Dated, Signed and Delivered atKISII this 30th day of July 2021.
R.E. OUGO
JUDGE
In the presence of:
Mr. Masinde For the Petitioners
Mr. Orwasa Court Assistant