[2010] KEHC 3279 (KLR)
The court found that there was sufficient prima facie evidence that E.M.M is of unsound mind and incapable of managing his affairs due to neurological complications. However, before making a final order appointing a guardian, the court required the applicant to obtain and file the written consent of all seven of...
Source-derived case information.
- Citation
- [2010] KEHC 3279 (KLR)
- Parties
- Applicant: E.M.M 2; Respondent: E.M.M
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 85 of 2009
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Application for Guardianship Under the Mental Health Act
- Outcome
- Interlocutory orders issued; final determination deferred pending filing of relatives' consents and their appearance in court.
- Judges
- CA Ombija
- Legal Topics
- Mental Capacity, Guardianship, Unsound Mind, Mental Health Act, Incapacity, Court Appointed Guardian
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
E.M.M 2
Applicant
E.M.M
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Application for Guardianship Under the Mental Health Act
Legal Issues
- 1 Whether E.M.M is of unsound mind within the meaning of the Mental Health Act.
- 2 Whether the applicant should be appointed as guardian of E.M.M's person and/or manager of his property.
- 3 Whether the consent of E.M.M's seven relatives is necessary before making further orders.
Ratio Decidendi
The court found that there was sufficient prima facie evidence that E.M.M is of unsound mind and incapable of managing his affairs due to neurological complications. However, before making a final order appointing a guardian, the court required the applicant to obtain and file the written consent of all seven of E.M.M's relatives resident in Kenya. The court also required the physical presence of the relatives to confirm the bona fides of the application. The matter was set for mention to confirm compliance before further orders could be issued.
Court Disposition
Interlocutory orders issued; final determination deferred pending filing of relatives' consents and their appearance in court.
Orders
- Applicant granted leave to file the written consent of the seven relatives of E.M.M before further orders are made.
- All seven relatives to appear before the court to confirm the application.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Miscellaneous Application 85 of 2009
IN THE MATTER OF THE MENTAL HEALTH ACT
IN THE MATTER OF E.M.M ALLEGED TO BE OF UNSOUND MIND
AND
E.M.M…2. ..............................................................APPLICANT
R U L I N G
By a petition dated 25th November, 2009, the petitioner, E. M.M 2 seeks orders that he be appointed as guardian of the said E.M.M’s person and/or managing his property.
The ground on which the petition is based is that E.M.M is a person of unsound mind within the meaning of the Mental Health Act. In addition he is a middle aged man of 54 years and suffers from neurological complications leading to right hemiplegia for the last two (2) years and as a consequence thereof became of unsound mind since April 2009.
The application is supported by the annexed affidavit of E. M.M 2 sworn on the 25th day of November 2009. The thrust of the applicant’s case is that E.M.M requires funds for treatment. The problem is compounded by the fact that he cannot speak, write or sign documents to facilitate the withdrawal of the requisite funds.
I have considered the application and most importantly the disclosure that E.M.M has seven (7) relatives who are resident in Kenya (See paragraph 7 of the petition). In view of the disclosure, I give the applicant leave to file a consent of the seven (7) relatives before making further orders. In addition to filing the consent of the said relatives as aforesaid, the court would like to see all the relatives to confirm if the applicant’s application is well founded.
Mention on the 15th day of March, 2010 to confirm if the consent has been filed so that a further hearing date can be fixed.
Dated and delivered at Kitale this 2ND day of FEBRUARY 2010.
N.R.O. OMBIJA
JUDGE