[2015] KEHC 7286 (KLR)
The court declined to grant the orders sought by the applicant for appointment as guardian because E N M, the subject's daughter and holder of a power of attorney, had not been served with the application. The court emphasized that E N M must be made aware of the proceedings and given an opportunity to respond, in...
Source-derived case information.
- Citation
- [2015] KEHC 7286 (KLR)
- Parties
- Respondent: P M M; Respondent: E N M; Applicant: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 39 of 2015
- Procedural Posture
- Guardianship Application / Ruling on Application for Appointment of Guardian
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Mental Capacity, Guardianship, Mental Health Act, Service of Process
- 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
P M M
Respondent
E N M
Respondent
__MISSING__
Applicant
Procedural Posture
Guardianship Application / Ruling on Application for Appointment of Guardian
Legal Issues
- 1 Whether the applicant should be appointed as guardian of P M M under the Mental Health Act.
- 2 Whether E N M, the subject's daughter and holder of a power of attorney, must be served with the application before orders are granted.
Ratio Decidendi
The court declined to grant the orders sought by the applicant for appointment as guardian because E N M, the subject's daughter and holder of a power of attorney, had not been served with the application. The court emphasized that E N M must be made aware of the proceedings and given an opportunity to respond, in line with the principles of natural justice and the requirements of the Mental Health Act. The absence of service on E N M was fatal to the application at this stage, and no injunction or restraining order had been sought against her. Accordingly, the application was dismissed with no orders as to costs.
Court Disposition
application dismissed
Orders
- The application for appointment of guardian is declined.
- No orders as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
PETITION NO.39 OF 2015
IN THE MATTER OF THE MENTAL HEALTH ACT CAP 248 LAWS OF KENYA
AND
IN THE MATTER OF P M M (THE SUBJECT)
RULING
I have considered the application before me. In essence the applicant seeks to be appointed as the Guardian of P M M. I have read the affidavit filed together with counsels oral submissions in court. The subject is said to have been diagnosed with a mental illness and that her condition has deteriorated and that she lives with the applicant. It is averred that there is a power of attorney allegedly signed by the subject donating general powers to E N M, the subject’s daughter, I note that the said E N M was not served with the application. The applicant claims that monies have been withdrawn and that the subject’s daughter has title documents and that the property can be disposed of.
I understand the applicant’s fears, however, there is a party who must be made aware of what is happening in court that is E N M. The applicant has not sought an injunction to restrain the said E N M from mismanaging the subject’s properties or bank accounts. E must be served with the application so that she can respond to the applicant’s request to be made a guardian. I therefore decline to grant the orders sought. No orders as to costs.
It is so ordered.
Dated, signed and delivered this 22nd Day of April 2015.
R. E OUGO
JUDGE
In the presence of:
…………………………………………………….…………..The Applicant
……………………………………………………………………Court Clerk