[2023] KEHC 25276 (KLR)

In re LNN (Petition E008 of 2023) [2023] KEHC 25276 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25276 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition E008 of 2023

A Mshila, J

November 10, 2023

IN THE MATTER OF SECTIONS 2, 26, 27 AND 28 OF THE MENTAL HEALTH ACT (CAP 248) LAWS OF KENYA AND IN THE MATTER OF LNN- A PERSON SUFFERING FROM A MENTAL DISORDER AND IN THE MATTER OF AN APPLICATION BY RNN AND MNN TO BE APPOINTED AS GUARDIAN OVER THE AFFAIRS OF THE ESTATE OF LNN.

In the matter of

RNN

1st Petitioner

MNN

2nd Petitioner

Judgment

Introduction 1. Before the court for determination is the Petition dated 20th February, 2023 brought by way of a Certificate of Urgency brought under no specific provisions of the Mental Health Act; this court will make the presumption that the applicable ones are Sections 26 (1) and (3) and 28 of the Mental Health Act; the Petitioners are seeking the following orders:a.Spent.b.The court finds the subject LNN is incapable of protecting her interests with regard to her affairs due to multi-senile dementia with loss of basic functions.c.That this Honourable Court be pleased to appoint the Petitioners RNN and MNN as the subjects’ guardian ad litem to jointly manage all the affairs of the subject LNN.d.The Petitioners RNN and MNN do jointly hold the subjects share of property being administered in Kiambu Succ.Cause No. E115 of 2021 for and on behalf of the subject

2. The Petition was supported by a Supporting Affidavit sworn by RNN the 1st Petitioner herein made on 20th February, 2023 in which she deponed that the subject is her mother who has been diagnosed with dementia prior to the demise of her father Stephen Ngethe Ngaari (deceased) who died intestate on 17/08/2021;

3. That Kiambu Succ.cause No. E115 of 2021 was filed to administer the estate and an interim Grant issued to the Petitioners, jointly and is pending confirmation before the court;

4. At the hearing of the Petition Doctor Nduiga Keiro who was attending to the subject testified on the subjects advanced multi-infarct dementia and to the medical treatment and produced the medical report marked as PExh.1 which report was prepared by himself and Dr. Thomas;

5. The Petition was unopposed

Issues for Determination 6. Having perused the Petition, the application and upon hearing the expert evidence this court finds that the only issue framed for determination is whether the orders sought are merited.

Analysis 7. Section 2 of the Mental Health Act Cap 248 provides that: -“A person suffering from a mental disorder” means a person who has been found to be suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and suffering from mental impairment due to alcohol or substance abuse.”

8. Further on the issue relating to custody, management and guardianship is provided under Section 26 of the Mental Health Act Cap 248 which provides:“(1)The court may make orders:a.For the management of the estate of any person suffering from mental disorder, andb.For the guardianship of any person suffering from mental disorder by any near relative or by any other suitable personc.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.d.Where upon inquiries 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 to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think just 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.”

9. The Petitioners have adduced medical evidence that the subject is suffering from dementia and is unable to take care of her affairs. This condition has been confirmed by Dr. Nduiga Kerio and Dr.Thomas Muvonde and Dr. Fauna Mumbi Njoroge in the Medical Report dated 16/02/2023 produced into court and marked as ‘PExh.1’.

10. The Petitioners submit the subject is their mother and seek the orders herein to manage their deceased fathers estate on behalf of their mother;

11. Upon observing the subject at the hearing hereof, the subject was bedridden and was unaware of her surroundings and unresponsive.

12. This court is satisfied that granting the Petitioner the orders sought would be in the best interest of the subject whom this court finds to be a person who requires to be managed as she has a mental disorder; this court is satisfied that this is a suitable case for the issuance of the orders sought as the subject is found to be a person who is incapacitated and unable to manage her personal affairs.

Findings and Determination 13. For the foregoing reasons this court makes the following findings and determinations;i.The Petition is found to have merit and it is hereby allowed.ii.The subject herein LNN is hereby adjudged to be a person suffering from a mental disorder pursuant to Section 26 of the Mental Health Act;iii.This court hereby appoints Petitioners LNN and MNN to be the Guardians ad litem and managers of the subject LNN.iv.The Petitioners shall act as the managers and guardians ad litem in respect to the affairs and estate of the subject, which shall not include distribution of her estate and shall in particular do the following:-a.Collect and jointly hold the subjects share of property being administered in Kiambu Succ.Cause No. E115 of 2021 for and on behalf of the subjectb.Preserve the subject’s estate including moveable property; receive monies and proceeds of her estate; execute and sign documents on behalf of the subject;c.Manage the subject’s health care; Utilize the above proceeds to cater for the subject’s medical expenses and maintenance;d.To render to family members and the court if directed regular yearly accounts on the status of the estate of the subject.v.This being a family matter there shall be no order as to costs.Orders accordingly.

DATED, SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 10TH DAY OF NOVEMBER, 2023. A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantOmwenga – for the Petitioners