[2017] KEHC 9265 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

Miscellaneous Cause No. 140 Of 2016

IN THE MATTER OF MENTAL HEALTH ACT,

CHAPTER 248 OF THE LAWS OF KENYA

BETWEEN

K W M.............................SUBJECT

AND

C N M...................1ST PETITIONER

L W M..................2ND PETITIONER

VERSUS

N K M.......................RESPONDENT

JUDGMENT

1. The subject K W M. is the mother of the petitioners C N M. and L W M and the respondent N K M. Her other children are N W N, S W N , G W M, N M and F W M. Her husband died on 7th April 1978.

2. On 28th October 2016 the petitioners filed this petition under the Mental Health Act, Cap 248, claiming that the subject suffers from mental disorder to the extent that she has lost the ability to manage her personal affairs. It was stated that she suffers from a mental neurotic disorder known as demien as a result of long illness and old age. She is 92. They swore that her condition was likely to continue indefinitely and she was not realistically expected to recover sufficiently to shoulder any of her previous responsibilities and competence. She has been suffering from this condition since 2006. She has been under care of C N M. Since then, C N M stated, she spends about 100,000/= per month on her to buy food, medicines and other necessities. Their father left a large estate comprising 11 (eleven) parcels of land which were inherited by the subject and the respondent who are now joint registered owners. The petitioners seek the authority of the court to manage the assets and affairs of the subject. They seek to be appointed managers and/or guardians of her properties.

3. In the affidavit sworn by C N M to support the petition there was no complaint, or anything adverse said, against the respondent.

4. The respondent filed a response opposing the application. He stated that he was the one appointed to administer the estate of their deceased father, following which he and the subject became the joint registered owners of the properties of the estate. He stated that he had neither mismanaged nor sold any property of the estate. He resides in the same compound with the subject, he said, and keeps a close eye on her by paying all her bills, except those that are covered by sale of milk from dairy animals he bought for her. He sunk a borehole for her. He stated that although the subject has been incapacitated by old age, she has no mental disorder. His case was that L W M. does not stay in the compound where the subject stays; that she is instead married and stays about 10km away. None of the properties is generating income from which the petitioners can get money to take care of the subject, he stated. Then that, the subject has no estate capable of being managed as he is a joint proprietor with her.

5. Further, the respondent claimed that the petitioners had come to court in this manner to try and get what they were unable to get in HC (Milimani) Succession Cause No. 144 of 1979 in which they asked under the Law of Succession Act (Cap 160) and Trustee Act (Cap.167)to be declared heirs of the deceased. They sought to inherit part of the deceased’s property. The respondent successfully objected to the cause on the basis that the Law of Succession Act did not apply to the estate, the deceased having died in 1978 (the Act came into operation on 1st August 1981). Lastly, he raised a preliminary objection to say that he was appointed a “muramati” under Kikuyu customary law and the 2nd petitioner, a married daughter of the deceased, could not administer the estate. Secondly, that there was no evidence that the subject had any mental disorder. Whether or not the subject has a mental disorder is a matter of evidence and cannot, therefore, be the basis of a preliminary objection (Mukisa Biscuit Manufacturing Co. Ltd –v- West End Dist. Ltd [1969] E.A 696).

6. C N M. swore a further affidavit to say that the petitioners were close to their mother, when compared to the respondent who was controversial and usually insulted them and their mother. She swore that the respondent had sold some of the estate of the deceased, had disconnected water (until they reconnected) and had not provided for the subject. She stated that there was real danger that the respondent would dispose of the estate of the deceased.

7. Mrs. Wambugu for the petitioners and Mr. Njuguna for the respondent filed respective written submissions. I have considered the petition, the response and the written submissions.

8. The question whether the subject suffers from mental disorder pursuant to the Mental Health Act has caused me a lot of anxiety. This is because, whereas the respondent says that the subject only has physical incapacity owing to old age the petitioners claim that their mother has mental disorder. The petitioners, to support their case, annexed a handwritten document from Salama Medical and Laboratory Services in which it was indicated that the subject suffers from neurotic disorder and total amnesia due to old age. It is dated 2nd September 2016 and signed by a doctor whose area of specialisation is not indicated. The doctor said that the subject was unable to walk or recall events owing to age. There is no dispute that advanced age will affect ability to walk and recall events. However, in this serious matter where the petition challenged the right of the subject to manage and organise her life, including her right to property, one would have expected effort to obtain medical evidence of a specialised nature regarding the mental and physical state of the subject. The petitioners failed in obtaining such evidence.

9. What has worried me more is the fact that the documents filed by the respondent indicate that in 2014 and 2015 C A N and G W sued the respondent and subject claiming from them land comprised in the estate of their late father. In the instant petition, the petitioners claim that the subject’s mental disorder has been on since 2006. That cannot be true, if they were suing her in 2014. One can only sue a person who has capacity to be sued.

10. It is for these reasons that I find that the petition was brought for a reason other than the one disclosed. It has no merit and is dismissed with costs.

SIGNED at NAIROBI this 14TH day of SEPTEMBER 2017.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 18TH day of SEPTEMBER 2017.

W. MUSYOKA

JUDGE