[2023] KEHC 25476 (KLR)

In re MOO (Miscellaneous Application E004 of 2023) [2023] KEHC 25476 (KLR) (14 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25476 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Application E004 of 2023

RE Aburili, J

November 14, 2023

IN THE MATTER OF MOO IN THE MATTER OF AN APPLICATION FOR GUARDIANSHIP BY NAO AND PMAO

Judgment

1. This matter was initiated by way of Notice of Motion under Order 37 Rule 16 and Order 32 Rule 12 of the Civil Procedure Rules, Section 1A, 1B, 3A of the Civil Procedure Act; Section 26, 28(1) and (2) of the Mental Health Act, Cap 248 and all the enabling provisions of the law.

2. The applicants NAO and PMAO are wife and daughter of the subject MOO. They seek orders that MOO be adjudged a person suffering from mental sickness under the Mental Health Act; that this court finds the said MOO incapable of protecting his interests with regard to his affairs due to senile dementia; that the applicants herein be appointed his guardians ad litem and that they be allowed to manage his affairs which include healthcare, access and operate his bank accounts, execute documents on behalf of the subject, execute legal documents on behalf of the subject and make decisions and handle his statutory payments payable to the Government.

3. The grounds upon which the application is predicated are that the subject is of old age and ill health and suffers from ill health and dementia hence incapable of protecting his interests as advised by the doctors.

4. The application is supported by the affidavit sworn by PMAO, the 2nd Applicant daughter of the subject reiterating the grounds adding that she had obtained consent of all her siblings and concerned parties. She also annexed copy of a letter from Aga Khan Hospital Kisumu dated 24th August 2023 written by Dr. Farida Kaittany to the effect that the subject had been on follow up at the facility for the last 3 years, that he has multiple comorbid health condition including dementia with subsequent cognitive impairment.

5. That his executive mental functions are significantly affected hence he is unable to understand the consequences of his actions or make informed decisions hid health care and finances. That it is necessary for the next of kin to take over the decision making process. Copies of identity cards for all the applicants and the children of the subject are annexed.

6. The said children also appeared online and so did the applicants and the subject whom the court interviewed by way of questioning. All the children indicated that they had consented to the application for the orders sought to be granted.

7. The question that I must answer is whether the applicants have demonstrated that they warrant the orders sought.

8. First and foremost is that the application ought to have been initiated by way of an originating summons as stipulated under Order 37 of the Civil Procedure Rules but this court will treat the omission to be a matter of form and I excuse the applicants.

9. Secondly, the affidavit in support though said to be sworn by Pamela A. Odawo, those who signed it are two namely PMAO and NAO on 18th September 2023.

10. Again I will treat that as a defect in form and cure the two defects under Article 159 of the Constitution.

11. Having said that, the question is, from my own inquiry of the subject, and the document filed in court, does the subject qualify to be a mental patient within the meaning of the Mental Health Act?

12. Section 2 of the Mental Health Act defines a person suffering from mental disorder as follows:“means a person who has been found to be so suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and a person suffering from mental impairment due to alcohol or substance abuse.”

13. Part XII of the Mental Health Act at Section 26 provides for judicial power over persons and estates of persons suffering from mental disorder as follows:“26 Order for custody, management and guardianship.(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 person.(2)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.(3)Whereupon inquiry 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 deem fit for the management of the estate of such person, including proper provision for his maintenance of such member 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 disorders.”

14. I reiterate that the definition in Section 26 of the Mental Health Act of a person suffering from mental disorders as a “person who has been found to be so suffering under this Act.”

15. From the document alleged to be a medical report dated 24th August 2023, the subject is said to be having multiple comorbid health conditions including dementia with subsequent cognitive impairment. That his executive mental functions are significantly affected.

16. The Act at Section 2 defines a person with mental illness to mean “a person diagonized by a qualified mental health practitioner to be suffering from mental health illness and includes…”

17. The Act also defines who a mental health practitioner is. Whereas the Section does it restrict a mental health practitioner to a psychiatrist or psychologist, it would be expected that the applicants produce before this court evidence of the subject suffering from mental illness by way of the very specific clinical tests that were carried out on him to determine that alleged infirmity.

18. The Court of Appeal in Ngengi Muigai & another v Peter Nyoike Muigai & 4 others [2018] eKLR agreed with the findings and holding of the High Court on the issue of whether the testator was suffering from a mental illness when he made the will in contestation and stated as follows, which is the test to be applied in determining whether one suffers from a mental illness or not:“In its assessment of the evidence, the trial court came to the following conclusion on the issue:“"I have carefully considered the evidence by the objectors and especially by Dr. Silverstein. It is clear from his testimony that the deceased was dementing (sic) and he had diagnosed this problem in the course of his treatment of the deceased over the years. What concerns me in his evidence, is that, he did not specifically detail the diagnosis in his notes, although he said that the diagnosis of dementia would stigmatize the patient, I find that he used rather bold language in his notes to describe the deceased's other problems and I doubt that Dr. Silvestein would have had difficulties to mention dementia if that was the deceased's problem that he was attending to. Furthermore I have also noted the following:a)Dr. Silverstein did not specifically see the deceased between June 1993 to October 1994. b)He stated that a dementing patient may have lucid moments when he can make rational decisions.c)He did not carry out specific clinical tests of the deceased such as Professor Ndetei said in his commentary that for one to diagnose dementia the following tests should be carried out.1. Collateral information from a relative who lived with the patient.2. The mental state examination (MSE).3. Mini mental state examination in suspected dementia.4. Neurological examination finding.5. Radiological examination.6. Laboratory work up. [emphasis added]Dr. Silverstein admitted that he did not carry out these tests but from the history of his long treatment of the deceased he did not have to carry out these tests as the deceased would present himself with physical conditions such as confusion, incontinence and disorientation. However, he said these could have been symptoms of other conditions. ........In view of this evidence the objectors submitted that the burden of proof that the Testator had the capacity to execute the Will shifted to the petitioner..... According to Professor Gitau and Mr. Parbary who attested the deceased signature, the deceased looked normal. He was physically incapacitated due to joint pains and hypertension. The other objectors did not see the testator on this day when he signed the Will. Perhaps Mr. Konyanya (sic), his cook could not specifically reveal this day, in any event this witness has no medical training. I have no reason to doubt the testimony of Professor Gitau and Mr. Parbary, even though the evidence of Mr. Parbary has been dismissed by the counsel as inconsistent. I am of the humble view that such inconsistencies to the mistake of whether the deceased was in the house of Ngengi at Lavington or Runda are not so material considering that these events took place 10 years ago. Similarly I am not able to make out why Professor Gitau would lie and mislead this court about the testator’s mental ability to make a testamentary disposition. His evidence was also criticized by the objectors because he did not produce medical notes and reports to support his evidence that he was treating the deceased. With tremendous respect, this witness was summoned by the objectors, I am not aware whether they served him with a notice to produce the records. He stated that he kept a patient’s card. I think professor Gitau did not have anything to lose or benefit by telling this court the state (sic) about the deceased mental capacity and ability to execute the Will."43. At the end of the day, therefore, the evidence on mental capacity rests on the credibility of the witnesses because none of the testifying witnesses examined the deceased for that purpose. On that credibility, the trial court was the better judge and we defer to its assessment.44. In the recent case of Rosemary B. Koinange (suing as legal representative of the Late Dr. Wilfred Koinange and also in her own personal capacity) & 5 Others v Isabella Wanjiku Karanja & 2 Others [2017] eKLR, this Court examined the issue of mental capacity and stated as follows:“"The essentials of testamentary capacity were laid out in the case of Banks v Goodfellow [1870] LR 5 QB 549 as cited with approval in the Tanzanian Court of Appeal case of Vaghella v Vaghella [1999] 2 EA 351 thus:““a testator shall understand the nature of the act and its effects, shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his will in disposing property and bring about a disposal of it which if the mind had been sound, would not have been made.”Construing the issue of capacity, Githinji, J. in the case of In Re Estate of Gatuthu Njuguna (Deceased) [1998] eKLR stated:As regards the testators mental and physical capacity to make the will, the law presumes that the testator was of sound mind and the burden of proof that the testator was not of sound mind is upon the person alleging lack of sound mind, in this case, the applicant (S.5(3) and 5(4) of the L.S.A.). However paras 903 and 904 of Volume 17 of Halsbury's Laws of England show that, where any dispute or doubt of sanity exists, the person propounding a will must establish and prove affirmatively the testators capacity and that where the objector has proved incapacity before the date of the will, the burden is shifted to the person propounding the will to show that it was made after recovery or during a lucid interval. The same treatise further shows that the issue of testator’s capacity is one of fact which can be proved by medical evidence, oral evidence of the witnesses who knew testator well or by circumstantial evidence and that the question of capacity is one of degree, the testator’s mind does not have to be perfectly balanced and the question of capacity does not solely depend on scientific or legal definition. It seems that, if the objector produces evidence which raises suspicion of the testators’ capacity at the time of the execution of the will which generally disturbs the conscience of the court as to whether or not the testator had necessary capacity, he had discharged his burden of proof and the burden then shifts to the person setting up the will to satisfy the court that the testator had the necessary capacity.”45. In that case, unlike the case before us, the deceased was specifically examined by the relevant specialists/consultants and it was common ground that:“"the deceased died of complications arising out of Alzheimer’s disease. The deceased’s death certificate indicates as much. From the proceedings, it was apparent that the deceased had been diagnosed as far back as 1993 with symptoms of the disease. Alzheimer’s disease, according to Dr. S. M. G. Mwinzi, a Consultant Neurologist who saw the deceased in January 1998 and later on 21st May 2001 is a chronic progressive degenerative disorder of the brain that is incurable. It has totally impaired all the aspects of his (the deceased’s) cognitive function namely speech/language, memory, orientation, personality, judgement and abstract thought. This process of decline of cognitive function has been going for several years now and must adversely affected or influenced many of the decisions he has made in the last nine to ten years.”

19. In my humble view, following the above decision which is clear on is expected to be done to determine the mental capacity of the person, from my own examination of the subject. I find that he does not satisfy this court to be a person suffering from any mental illness.

20. Furthermore, from my extensive research on the internet, multiple comorbid health conditions are not necessarily mental illnesses. The term as underlined above simply describes the existence of more than one disease or condition within one’s body at the same time, which diseases are long term or chronic. (see Annals of Family Medicine 2009 July; 7(4) 357-363.

21. And whereas dementia with subsequent cognitive impairment may be among the multiple comorbid health conditions which may affect a person’s executive mental functions significantly, I am unable to accept the finding that the term dementia is a mental condition that can be classified as a mental illness. Dementia, also known as senility is a broad category of brain disease that cause long term and often gradual decrease in the ability to think and remember that is great enough to affect a person’s daily functioning. (See Mediline plus v National Library of Medicine and www.mriam –webser.com which defines dementia as a condition that affects the mind of aging people and causes them to be confused, to forget things. It is therefore an illness of older adults and should not be confused with mental illness.

22. Dr. Farida Kaittany is a consultant physician at Aga Khan Hospital Kisumu. There is no evidence that the said doctor ever subjected the subject to any specific Clinical tests that would result in the conclusion that he was suffering from mental illness.

23. In addition, Order 32 Rule 15 of the Civil Procedure Rules grants this court the power to inquire of persons alleged to be mentally unsound and make orders that are just. It follows that whether or not there is a medical report asserting that a person has a mental illness, the court has the ultimate authority to determine whether the person qualifies as a mental patient or not. This is not to say that the court turns itself into a psychiatrist but that it would observe the behaviour of a person and coupled with medical evidence, reach an appropriate determination on the mental status of a person.

24. I had the opportunity to engage with the subject who was virtually present in court after he was called by his spouse while he was going about his business in his homestead. He was very responsive and stable in his speech. He knew that he was speaking with the Court and he spoke very confidently, audibly and intelligently. He did not display any evidence or the signs of mental illness. He answered all questions put to him by the court quite coherently and intelligently and even remembered vividly the schools he went to, the University where he was trained, his work life, his eight children who were all online and he could recognize all of them by name and appearances physically.

25. He acknowledged that he was unwell and stated that his wife could help him by running around for him and even escorting him to the bank to carry out transactions. I was unable to detect any mental infirmity or cognitive impairment or find that he was incapable of protecting his interests when suing or being sued.

26. As was succinctly put by Mativo J in MMM v AMK Misc. Application No. 51 of 2015 [2016] eKLR.1. A person must be assumed to have capacity unless it is established that he/she lacks capacity.2. A person is not to be treated as unable to make a decision unless all practical steps to help him/her to do so have been taken without success.3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.4. An act done, or decision made, under Order 32 Rul 12 for on behalf of a person who lacks capacity must be done, or made, in his/her best interests.5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”

27. Having examined the subject, I am unable to accept the filed documents which suggest that the subject is a person who suffers from mental illness or disorder and that therefore incapable of managing his own affairs requiring appointment of the applicants herein as his guardians.

28. I am further fortified by the decision though persuasive, in the matter of Gerson Kirima [2009] eKLR where the court stated that:“The Petitioner while bringing a petition for orders under Section 26 of the Act has to show the court by providing medical reports to substantiate the averment made in the petition. The petitioner, when he comes before the court, has to show prima facie that the person against whom the orders are sought is a person suffering from mental disorder so as to be incapable of coping the ordinary demands of life and the orders sought is for the welfare of the person concerned.This satisfaction by the court has to be based on the medical reports annexed to the petition. I humbly agree that the court as per the provisions of the Act has no jurisdiction to enter into the arena of dispute so as to assist either party to substantiate their respective claims.”

29. In this case, albeit all the subject’s family members consented to the application, but those consents were not supported by what I established through an inquiry and examination of the subject through one on one conversation.

30. In Re-estate of INM [2021] eKLR the court declined to allow an application of similar nature on account that there was no medical report from an expert psychiatrist. With or without such medical report, the court under Order 32 Rule 12 of the Civil Procedure Rules must be satisfied upon inquiry that the subject is suffering from a mental disorder.

31. In SNW & 2 Others v JKW & Another [2020] eKLR Muchelule J (as he then was) declined to grant similar orders on account that there was insufficient evidence place before the court to enable a funding that the lady in question had any mental disorder or illness or had such disorder or illness that she was incapable of managing her life and property.

32. The court observed that the medical report relied on in the petition stated that the subject had been examined by a medical doctor and found to have senile dementia owing to old age and that she could not recall or make an informed decision. The doctor was even cross-examined in court and never stated that he was a psychiatrist or that he had been managing psychiatric patient. That is scenario here.

33. In this case, albeit the doctor – physician who wrote the ‘ medical report’ never appeared, the so called medical report is not personalized. It says as follows in part “The above patient has been on follow up with our facility for the last 3 years…” The doctor does not say that she had been treating the subject or whether he had been seen as a psychiatric patient in that facility and if so, what clinical tests were undertaken to determine that he had mental disorder.

34. In the end, I am unable to find in favour of the applicants on both limbs of the application dated 25th October 2023 which is hereby declined and dismissed.

35. This file is closed.

36. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF NOVEMBER, 2023. R. E. ABURILIJUDGE