[2024] KEHC 1222 (KLR)
The court found that the petitioner had provided sufficient evidence and support from the subject’s siblings to warrant her appointment as guardian of KS for the management of his affairs and estate. However, the court declined to declare KS as suffering from mental illness, holding that such a declaration can only...
Source-derived case information.
- Citation
- [2024] KEHC 1222 (KLR)
- Parties
- Petitioner: EM; Respondent: KS
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Petition 2 of 2024
- Procedural Posture
- Guardianship Application / Judgment
- Outcome
- Petition partly allowed; guardianship granted but declaration of mental illness declined.
- Judges
- JN Kamau
- Legal Topics
- Mental Health Guardianship, Appointment of Guardian, Management of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EM
Petitioner
KS
Respondent
Procedural Posture
Guardianship Application / Judgment
Legal Issues
- 1 Whether the petitioner should be appointed as guardian of KS under the Mental Health Act.
- 2 Whether KS should be declared to be suffering from mental illness as defined in the Mental Health Act.
Ratio Decidendi
The court found that the petitioner had provided sufficient evidence and support from the subject’s siblings to warrant her appointment as guardian of KS for the management of his affairs and estate. However, the court declined to declare KS as suffering from mental illness, holding that such a declaration can only be made by a qualified medical practitioner under the Mental Health Act. The court proceeded to grant the guardianship orders in the interest of justice, despite the absence of a supplementary affidavit, due to the urgency and the prolonged pendency of the matter.
Court Disposition
Petition partly allowed; guardianship granted but declaration of mental illness declined.
Orders
- Prayer No (1) of the Petition declined.
- Prayer No (2) and (3) of the Petition granted: Petitioner appointed as guardian of KS and authorized to manage his estate.
Full Case Text
Judgment text and source record
20 paragraphs
In re KS (Petition 2 of 2024) [2024] KEHC 1222 (KLR) (13 February 2024) (Judgment)
Neutral citation: [2024] KEHC 1222 (KLR)
Republic of Kenya
In the High Court at Vihiga
Petition 2 of 2024
JN Kamau, J
February 13, 2024
IN THE MATTER OF THE GUARDIANSHIP OF KS
In the matter of
EM
Petitioner
Judgment
1. The Petitioner filed a Petition dated 6th July 2022 on 21st July 2022. She sought that she be appointed as Guardian of the subject, KS in accordance with the Mental Health Act Cap 248 (Laws of Kenya) to represent him in all his affairs and also to manage his estate. She had also sought that he be declared to be suffering from mental illness as defined in the Mental Health Act.
2. She also filed a Further Affidavit on 27th July 2022. The same was sworn on 26th July 2022 in which she attached copies of the Medical Report dated 8th April 2022, Grant of Letter of Administration Intestate dated 12th April 2021, Kenya Gazette of 12th March 2021 and the Petition for Letters of Administration Intestate dated 30th December 2020 in respect of Vihiga SPM Succession Cause No XX of 2021 in the matter of the Estate of EY arap V alias YB (Deceased).
3. The court heard the Petitioner, her counsel and the subject’s siblings all who confirmed that the Petitioner could be appointed as the Guardian of the subject and also saw the original Certificate of Death of his other sibling, FBY. This court was satisfied that the Petition had merit save for Prayer No (1) of the said Petition dated 6th July 2022 and filed on 21st July 2022. Indeed, it was only a Medical Practitioner who could declare a person as one suffering from a mental condition as defined on the Mental Health Act.
Disposition 4. The court therefore declines to grant prayer No (1) of the said Petition but grants Prayer No (2) and (3) therein.
5. That for the completion of records, the Petitioner be and is hereby directed to file a Supplementary Affidavit to annex to a copy of the Certificate of Death of Francis Boiyo Yeye by 22nd February 2024 and in any event before the extraction of the order herein.
6. This court has opted to proceed with the hearing in the absence of the Supplementary Affidavit purely in the interest of justice as this matter, which was filed under Certificate of Urgency, has been pending in court since 21st July 2022.
7. Orders accordingly.
DATED AND DELIVERED AT VIHIGA THIS 13TH DAY OF FEBRUARY 2024J. KAMAUJUDGE