[2023] KEHC 25495 (KLR)
The court found that the applicants, as appointed guardians and managers of KWG, are required by law to seek leave of the court before disposing of any immovable property belonging to KWG. The court acknowledged the necessity of selling the property to provide for KWG's medical and daily needs. However, the court...
Source-derived case information.
- Citation
- [2023] KEHC 25495 (KLR)
- Parties
- Applicant: JWG; Applicant: AWG; Respondent: KWG
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E165 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Dispose of Property by Appointed Guardians
- Outcome
- Application allowed with conditions.
- Judges
- EKO Ogola
- Legal Topics
- Mental Health Guardianship, Property Management of Incapacitated Persons, Court Approval of Property Disposal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JWG
Applicant
AWG
Applicant
KWG
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Dispose of Property by Appointed Guardians
Legal Issues
- 1 Whether the appointed guardians require court approval to dispose of immovable property belonging to KWG, a person adjudged to suffer from mental illness.
- 2 Whether the applicants have complied with statutory requirements for publication of their appointment in the Kenya Gazette before disposing of the property.
Ratio Decidendi
The court found that the applicants, as appointed guardians and managers of KWG, are required by law to seek leave of the court before disposing of any immovable property belonging to KWG. The court acknowledged the necessity of selling the property to provide for KWG's medical and daily needs. However, the court emphasized that the statutory requirement for publication of the guardians' appointment in the Kenya Gazette is mandatory and must be complied with before any sale can proceed. The court therefore allowed the application, subject to the applicants ensuring publication of their appointment and the lapse of the 14-day objection period without any objections being lodged. Only after...
Court Disposition
Application allowed with conditions.
Orders
- Applicants to ensure their appointment is published in the Kenya Gazette.
- If after 14 days from publication no objection is lodged, applicants are at liberty to sell LR No Loc 11/Maragi/11xxx and LR No Loc 11/Maragi/11xxx.
Full Case Text
Judgment text and source record
21 paragraphs
In re KWG (Miscellaneous Application E165 of 2022) [2023] KEHC 25495 (KLR) (Family) (16 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25495 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Miscellaneous Application E165 of 2022
EKO Ogola, J
November 16, 2023
In the matter of
JWG
1st Applicant
AWG
2nd Applicant
Ruling
1. On July 4, 2023 the court delivered its judgment appointing JWG and AWG as guardians and managers of KWG a person adjudged to suffer from mental illness under the terms of the Mental Health Act.
2. The applicants have now filed an application dated July 18, 2023 praying for the following:-a.The guardians JWG and AWG be authorized to dispose/sell the properties known as Land Reference Number Loc 11/Maragi/11xxx and Loc 11/Maragi/11xxx currently registered in the subject’s name, KWG;b.The guardians JWG and AWG be granted authority to enter into any form of agreement for the sale and transfer of the subjects’ properties, Land Reference Numbers Loc 11/Maragi/11xxx and Loc 11/Maragi/11xxx; andc.The guardians JWG and AWG be allowed to use the proceeds from the sale of the subject properties, Land Reference Numbers Loc 11/Maragi/11020 and Loc 11/Maragi/11xxx, for the day-to-day care and medication and upkeep of the subject, KWG.d.The costs to be in the cause.
3. The application is based on the grounds set out therein and the joint Supporting Affidavit of the applicants. The applicants deposed that there is a need for financial liquidity to care for KWG’s medical and daily needs. That is the reason they seek leave to dispose of KWG’s properties to cater for these needs.
4. Section 28 (2) (a) of the Mental Health Act requires the appointed guardian/manager to seek leave of court to transfer any immovable property belonging to the estate of the incapacitated person. The provision states as follows:-“(2)The manager shall not, without the approval of the court—(a)mortgage, charge or transfer by sale, gift, surrender or exchange any immovable property of which the estate may consist”
5. In the circumstances, it is clear that KWG requires medical and daily care that costs a lot. Therefore, there is no reason why the orders sought cannot be granted. However, section 27 (4) and (5) of the Act provide that after a guardian/manager has been appointed, their appointment should be published in the Kenya Gazette. The provision stipulates as follows:-“(4)The court shall, by notice in the Gazette, inform the public of the appointment of a person as the manager of the estate of a person who is suffering from mental illness.(5)Within fourteen days of the Gazette Notice under subsection (4), any person may lodge an objection to the person appointed as manager.”
6. The applicants have not demonstrated that their appointment has been published in the Kenya Gazette. This procedure is important and cannot be brushed off. In the premise, I hereby allow the application dated July 18, 2023 and make the following orders:-a.Applicants are directed to ensure that their appointment is published in the Kenya Gazette.b.If after 14 days have lapsed and there is no objection lodged, the applicants are at liberty to sell the parcels of land known as LR No Loc 11/Maragi/11xxx and LR No Loc 11/Maragi/11xxx.c.The conveyance or other instrument made concerning LR No Loc 11/Maragi/11xxx and LR No Loc 11/Maragi/11xxx shall be valid.d.Cost be in the cause.It is so ordered.
DATED AND DELIVERED IN NAIROBI THIS 16THDAY OF NOVEMBER 2023……………………………………..E.K. OGOLAJUDGEIn the presence of:Mr. Keiro for the ApplicantsGisiele Muthoni Court Assistant